The ACT has apparently become the favourite shop of the forum shoppers who want to engage in surrogate motherhood. At least one woman is pregnant with another couple’s child, apparently ready to surrender it after the birth.
But the law is not in keeping with technology or morality.
ACT law makes it a criminal offence to engage in commercial surrogacy … where the receiving parents pay the surrogate mother. But it does not make it a criminal offence to engage in altruistic surrogacy … where only reasonable expenses are paid. That has resulted in people thinking that it is open-go for altruistic surrogacy. Not so. There are quite a few hurdles and the law makes it clear that surrogacy is a Bad Thing, even if it does not make it criminal.
There are half a dozen hurdles.
Altruistic surrogacy agreements are void. This means that a woman can bear the child and keep all the living and medical expenses provided by the receiving parents and then renege, keeping the child. The receiving parents have no recourse. They do their dough. Conversely, the receiving parents can walk away, and the surrogate mother is left, literally, holding the baby. Moreover, there is an irrebuttable presumption of law, in every state and territory, that she is the mother and she carries the duties that flow from it.
Even if the surrogate mother agrees to give up the child, there is no guarantee that the receiving parents get to keep it. The surrogate mother faces a choice: surrender the child for adoption or keep it. If she surrenders it, she surrenders it generally and the adoption authorities choose the new parents, according to the best interests of the child. They may decide to give the baby to someone completely different. (There are exceptions which would enable the surrogate mother to restrict her consent for adoption to a very close relative, notably a sister or parent.)
The Director of Family Services can order that the surrogate mother’s name goes on the birth certificate if it is later found out that the receiving parents just took the child as their own and attempted to register the birth.
There are big problems if the surrogate mother is married, especially if her husband agrees to the pregnancy. There is an irrebuttable presumption of law that the surrogate’s husband is the father of the child … and he carries all the (custody) rights and (maintenance) duties that flow from it. These flow even if the receiving parents prove with DNA testing that they are the biological parents. This irrebuttable presumption has been put in place for the very purpose of overcoming claims by genetic fathers in cases of artificial conception.
Moreover, in these circumstances, there is also an irrebuttable presumption of law that the genetic father is not the father the child. This presumption was put there to protect genetic fathers against claims in cases of artificial conception. Both these presumptions were created when artificial insemination was the main form of artificial conception and no-one imagined that the genetic father would want to claim paternity nor have it thrust upon him.
Despite this, the ACT program insists the surrogate mother is in a stable marriage.
Legislation is silent if the surrogate mother is single. The common law would apply and she would be the mother and there would be no father, irrespective of what the genes, because of the irrebuttable presumption of law that sperm donors cannot be lawful fathers.
The law is a mess. And as it appears that no law will prevent the technology being used to provide babies to mothers who can’t ‘ave ’em, it may as well be changed to make things a little easier.
The surrogate mother should be able to insist that only the genetic parents adopt the child if she gives it up. It may be that adopting authorities would never want to go past the genetic parents in any event, but there is no guarantee. At present, this is the only practical bar to successful surrogacy in cases where all parties trust each other and stick to their promises and in such situations it is difficult to see what the objection is.
Such parenthood cannot be any more or less fraught than normal.