A great deal of heartache could face some couples in Canberra over surrogate motherhood … and some babies are on the way. The ACT has made it a crime to engage in commercial surrogacy, but has left open the field of altruistic surrogacy … where a woman agrees to carry the genetic child of another for nothing.
It is a case of the law not keeping up with medical technology. It is now possible for an egg to be fertilised by sperm externally and implanted into a woman. It provides for many combinations of biological and birth parenthood. As a general principle, however, the present law provides that the male who provides the sperm is father and the woman from whom the baby is delivered is the mother, even if the ovum was not hers. Maintenance duties and custody rights can flow from that.
So, at the end of the pregnancy the surrogate mother may be able to change her mind and keep the baby and the donor father may find himself liable for support. Moreover, even if the surrogate mother is happy to surrender to the other mother (who may have provided the ovum or may just be the wife of the man who provided the sperm using the surrogate’s ovum), there is no guarantee that a lawful adoption would follow. Adoption laws have been crafted without surrogacy in mind.
Then again the surrogate mother may happily transfer the child; adoption authorities happily process the adoption and everyone lives happily ever after. But the present situation is not satisfactory. It would be better if there were some reasonably certain rules.