The ACT Government has moved to surrogacy law in the ACT so that the genetic parents do not have to go through formal adoption arrangements of a baby born to a surrogate mother. It seems a sensible thing to do, but that does not mean that people should underestimate the complexity and messiness of surrogate motherhood arrangements. Nor should they expect legislation to provide a remedy or solution in every case.
Most states outlaw surrogate motherhood arrangements outright. The ACT, however, permits altruistic surrogacy. This is where a woman, presumably a relative or very close friend, carries the genetic material of another couple without payment.
Present law and administrative arrangements, however, make things very uncertain for a surrogate parenting agreement. If the woman who carries the child gives it up, there is no guarantee that the child must go to the genetic parents. It goes according to what authorities or the court decides is in the best interests of the child. Nor can the genetic parents just take the child because the law presumes the woman who carried the child is the mother and can insist her name goes on the birth certificate.
The new law will overcome some of these problems. Babies born in a surrogate arrangement can be handed to the genetic parents who can get a parentage order from the Supreme Court without going through adoption procedures which require supervision, trial fostering and other social-welfare assessments. It is fortunate that there is at least some court oversight.
Even with this law, other problems will arise that perhaps the law cannot hope to overcome.
At present 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. Conversely, the receiving parents can walk away, and the surrogate mother is left, literally, holding the baby with all the duties that flow from it. The former can easily happen if the carrying mother after nine months of pregnancy gets emotionally attached to the child and the latter can happen if the child is, for example, born with some handicap. No amount of law can overcome these emotionally charged situations.
There are further complications 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.
After the changes to the law, altruistic surrogacy should be free of legal complications, provided all goes well. The human difficulties that might arise if either side reneges, however, are not that simple.
The ACT could have gone the other way and made all forms of surrogacy a criminal offence. This would have been undesirable. It would have unnecessarily denied some women the chance to have a child and may have caused others to break the law with backyard surrogacy arrangements. Or the ACT could have gone further down the surrogacy path. It could have deemed the genetic parents to be the legal parents. But this would have had the dangerous effect of making surrogacy arrangements legally enforceable. The courts would be forced to order the carrying mother to surrender the child.
One baby has already been born in the ACT under a surrogacy arrangement and no doubt more will follow. Indeed, there is a surrogacy program at John James Hospital.
There has been some criticism that the ACT’s failure to ban all surrogacy arrangements will result in the ACT becoming a magnet for people from interstate wanting to engage in surrogacy arrangements. This is unlikely. It requires considerable expense, inconvenience and effort for two couples to come to the ACT, stay here for the time it takes for the surrogacy program to succeed in establishing a pregnancy and then to reside here again long enough to qualify for a parenting order.
The new law will overcome some needless complexities for couples in surrogate arrangements. It is likely that as people do not enter these arrangements lightly, that most will go well. One can only hope that ugly cases do not develop where either a child is not wanted by either set of parents or is demanded by both.