The history of adoption shows that fairly clearly. Half a century ago Nanny was convinced that with adoption, for example, secrecy was the best policy.
No adopted child was to know his or her natural mother. Natural mothers could not find out what had happened to the child she gave had given away two decades before. The theory was that, once given away, the child would become the child of the new family. There could be no half-way house, Nanny ruled.
In Australia, of course, Nanny was hopelessly wrong in its policy on Aboriginal children, taking children away from natural parents to be assimilated.
But Nanny does not learn easily. She likes to regulate, interfere, prohibit and control unnecessarily. She does so with the best intentions, but often with the most heart-burning results.
The ACT Nanny is about to regulate, control, prohibit and interfere with surrogate motherhood. A Bill is to go before the ACT House of Assembly in the August sitting to make it a crime to enter into arrangements for surrogate motherhood or to help couples professionally or to publicise their cause.
If the ACT follows the Victorian model it would become a crime to do what this newspaper did this week (June 12-19): publish the story about a couple wanting a surrogate mother.
In Victoria, it is an offence punishable by two years’ jail to enter into a surrogacy arrangement or to advertise or publish material seeking someone to act as a surrogate. Victoria makes such contracts void. That means the receiving couple cannot demand the child, the surrogate cannot demand payment and any payments made cannot be recovered.
Some other states have similar legislation, but the ACT does not. The ACT can only rely on adoption, family law and perhaps old English slavery legislation to block surrogacy. But should it want to?
The case in Canberra puts the position neatly. Adoption is hopeless. For a start there are no babies available for adoption these days. In 1972 there were 8000 adoptions in Australia by non-relatives. By 1985 it had dropped to a mere 800. Presumably there were still at least the same number of hopeful childless couples as in 1972. That means a backlog of, say, 7200 couples a year. That spelt despair for Peter and Wendy Voelker, of Gordon. And that is why they sought a surrogate mother to bear a child for them. They were willing to pay $100 a year and medical expenses.
What business is it of Nanny state to prohibit such an arrangement or to make it a crime? Clearly, the state does not want to be held holding the baby, as it were. There are enough welfare recipients in Australia without encouraging more. So, far from prohibiting these agreements, the state has an interest in enforcing them. Receiving parents should not be allowed to go back on them, but be held responsible for the child’s upbringing, even if it doesn’t did not turn out to be the ideal child they had hoped for.
Further, the sort of couples who are willing to pay a surrogate and go into it consciously are perhaps more likely to be better parents than some of the “”natural” parents you see around the place beating up their children in the supermarket or screaming at them down the street over imagined misdemeanours.
The surrogates know what they are getting themselves in for and are in control of their own bodies. Why shouldn’t they be held to their agreements? Perhaps the purposeful parenthood of surrogacy is a better foundation for a child’s upbringing than that of biological accident. Certainly, it is no worse.
A legislative ban, moreover, will would not stop all cases. Some will would go ahead illegally and the state and courts will would be left with resulting custody disputes.
If surrogacy is were allowed, courts would still have a general role in custody disputes and allegations of neglect to make orders in the best interests of the child, whatever the surrogacy agreement might say.
Before the ACT rushes in to ban surrogacy and deny parenthood to many couples it should look at the American experience if that can be done without a trans-Pacific jaunt by MLAs.
In a case last month, the Californian Supreme Court ruled 6 to 1 that the receiving couple were the parents of a boy born to a surrogate mother. The court upheld the surrogacy contract.
The surrogate agreed to bear the child for $10,000, but said later she had bonded with the foetus while pregnant, and demanded shared custody. In the neologistic and combative terms of the Californian Bar she charged the receiving parents with “”foetal neglect”.
The court’s only woman, Justice Joyce Kennard, argued that a surrogate mother is was “more than a mere container.” She said the child’s welfare should be primary and the surrogate’s role acknowledged, according to a report in the Los Angeles Times.
The case prompted state Senator Diane Watson to introduce a Bill that would strip a surrogate mother of all rights to the newborn.
The Bill would require surrogates to be at least 21, to have borne at least one child and to receive counselling. Custody of the newborn would be granted to the intended parents, with adoption necessary in some cases. Disputes would be resolved based on the child’s best interest.
The Governor of California, Pete Wilson, vetoed an earlier version of the Bill last year, saying there were too few cases to warrant legislation.
Twelve US states attempt to regulate surrogacy. Four have banned it making it a crime: Arizona, Michigan, Utah and Washington. At least five other states , including New York, allow surrogacy but say such contracts cannot be legally enforced. New York additionally bans paying surrogates. Nevada, Arkansas and Florida have laws favourable to commercial surrogacy.
In 1988 the “”Baby M” case ended with the New Jersey Supreme Court finding surrogacy contracts illegal and granting visiting rights to the surrogate.
Justice Kennard praised model legislation drafted by the National Conference of Commissioners on Uniform State Laws, which would protect rights of both women who provided genetic material for surrogate pregnancies and women who carry carried the babies to term.
The proposed legislation would require court approval for surrogacy agreements and counselling for all parties.
“”There would never be a question as to who has the legal responsibility for a child born of a gestational surrogacy arrangement,” Justice Kennard wrote. “”If the couple who initiated the surrogacy had complied with. the legislation, they would be the child’s legal parents. If they had not, the rights and responsibilities of parenthood would go to the woman who gave birth to the child.”
The American US experience suggests the gut reaction to ban surrogacy is not universal. A US court and several states are willing to uphold surrogacy agreements. In a federation there is room for different laws in different states.
The Queensland Premier, Wayne Goss, in a rare exhibition of perspicacity, has pointed out that the endless round of councils of state ministers erodes states’ sovereignty in their drive for uniformity.
I would go further and say what is the point of being uniformly backward or uniformly wrong?
The trendy lefties who would like to abolish the states do themselves a disservice. Sometimes one state can be quite reformist and intelligent in its legislation, even our own Little House on the Limestone Prairie, whereas in a national context intelligent reform might may be impossible if the troglodytes from, say, Queensland and Tasmania have to be carried into a consensus.
The Voelkers’ case might may make the ACT Assembly stop to and think before signing into law copycat legislation from other states. Rather than banning surrogacy outright, Nanny ACT might may restrict itself to just removing some of the uncertainties of the common law so that receiving couples and surrogates know where they stand and some childless couples get a chance at parenthood.