One of the challenging issues in the area of obstetrics, from a regulatory and ethical perspective, is surrogacy. In Australia, surrogacy is legal in all states and territories for altruistic purposes. It is prohibited, however, for commercial purposes. Altruistic surrogacy is an agreement where the surrogate does not receive compensation for the pregnancy. It is usual for a surrogate’s medical and associated pregnancy care to be paid for. In contrast, commercial surrogacy is an arrangement in which the surrogate receives compensation for ‘her services’ which, as outlined above, is illegal in Australia.
Recently, Senior Associate Linda Crawford attended the national Obstetrics Malpractice conference in Melbourne with health lawyers, obstetricians, midwives and other interested groups. An academic from Deakin University in Victoria – Dr Sonia Allan – presented on the issue of surrogacy at the conference. She has written extensively on various matters and you can view Dr Allan’s impressive resume on her website.
Dr Allan outlined the regulatory requirements regarding surrogacy – namely that it is a requirement in all states and the ACT that intending parents and the surrogate must meet certain criteria to be eligible to participate in assisted reproduction and surrogacy. The law also requires the intending parents and surrogate to undertake counselling. Some jurisdictions require psychiatric assessment of all parties to the agreement.
In addition, the intended parents and surrogate are required to obtain legal advice regarding the process. In Western Australia and Victoria, there is a requirement for surrogacy pre-approval which means the matter is reviewed by a panel. Once approved, the conception can occur. Following pregnancy, both parties then apply to the Court within 6 months to transfer parentage.
Recent inquiries regarding surrogacy in Australia raise regulatory and ethical issues. For example, where the surrogate lives in a different state from the intended parents, issues arise as to which law applies in respect of the process. According to Dr Allan, there is a move towards an overarching national law in respect of surrogacy. Her view is that greater regulation and more education is required in respect of what the profession and consumers can and cannot do.
Dr Allen’s view is that the law with respect to eligibility criteria needs to be reviewed. At present same sex couples are prohibited from accessing surrogacy in Australia. In those circumstances, one can imagine such restrictions may encourage such couples to access surrogacy outside Australia and potentially through commercial means.
By removing such barriers and making surrogacy accessible to individuals who otherwise meet the surrogacy criteria, overseas and commercial surrogacy can be curtailed and hopefully avoid situations like the abandonment of baby Bridget in Ukraine. You may have read the tragic story of Bridget who was born with a disability to a surrogate mother. This unfortunate child was abandoned by the intending parents who were US citizens – upon discovering the child’s disability.
There is much more to learn, discuss and discover in respect of this emerging area of pregnancy and birth.
If you need legal help and advice with a surrogacy matter, please do not hesitate to talk to one of our expert and caring lawyers about the options available to you. To confidentially discuss your needs call us on 1800 874 949 or complete the form below and we will be in touch.
