New Recommendations Could Change Surrogacy Laws

The Attorney-General George Brandis released a report on 14 August 2014 by the Family Law Council which has advised the Federal Government that children should be allowed to have more than two legal parents.

With the increase in modern medical technologies, more people are taking advantage of surrogacy arrangements and IVF procedures to become parents. The report states that “the use of reproductive technologies and surrogacy to create families has also increased the number of potential parents that a child may have, including a mix of genetic, gestational, social and intending parents.”

The Council has recommended that the definition of “Parent” be amended to include term “parent and other significant adults”. They have also recommended that the law should provide scope for the recognition of more than two people to have parental responsibility for a child where that reflects the social reality of that family and that parenting orders be granted to more than two persons where that supports the child’s best interest.

As the law presently stands, surrogate mothers are considered the legal parent of the child, rather than the person who provided the egg to the surrogate. This issue has become the focus of much media attention recently due to the case of “Gammy” the young boy who was born with Down syndrome to a Thai surrogate. The report calls for commonwealth legislation to clarify that sperm donors, egg donors, or surrogate mothers are not legal “parents” by changing the Family Law Act to clarify that donors of genetic material are not legal parents. Australian parents who use their own embryos, sperm or eggs in surrogacy however, should be recognised as the legal parents of surrogate children.

“Council is conscious that the amount of children conceived as a result of overseas commercial surrogacy arrangements has increased dramatically in the past several years despite the existence of Australian laws prohibiting such arrangements…As a consequence it would seem that a large number of young children are growing up in Australia without any secure legal relationship to the parents who are raising them.

The council recommends the Family Court should be given new powers to transfer legal parentage from the surrogate parents. A judge would need to be satisfied that the surrogate mother had given her full and prior informed consent as some surrogate mothers overseas have used a thumbprint to sign a contract. It recommends the government introduce a status of children act to help the Family Court determine the parentage of children born through IVF and surrogacy.
The council also supports a wider definition of “parent” in indigenous communities to embrace aunts, uncles or grandparents raising the children. It calls for legalisation of the customary adoption practice of Torres Strait Islanders known as kupai omasker.