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Monday, 14 August 2000
Page: 18855


Mr HORNE (3:31 PM) —I move:

That a Standing Committee on Legal Affairs and Ethics be appointed to inquire into whether to permit human surrogacy in Australia and, if so:

(1) under what terms and conditions surrogacy should be legalised; and

(2) the legal, ethical, moral and religious framework by which legal agreements could be drawn up to allow human surrogacy to take place giving maximum legal safeguards to all people involved.

I thank other members of the House for participating in this debate. I have moved for the establishment of a committee to inquire into human surrogacy because I believe it is an issue that needs to be debated. It is an issue about the technological advances of the 21st century. It is also an issue about the sensitive, emotive and humanitarian issue of parenthood.

I am sure there are many people who have an opinion about surrogacy. I am not sure those opinions are always based on accurate information or on a full consideration of all the legal, ethical, moral and religious issues involved. But I do know that there are many devoted young couples who would make ideal parents and who cannot have their own children. They fall outside the IVF guidelines, so are outside our current legislation. It is for the sake of those young couples, perhaps only a very small number in our society, that I wish to see this issue explored.

I do not think anyone disagrees with the view that, in an ideal society, a family should be composed of mother, father and children. I want to talk about a young couple who have those natural aspirations of becoming parents. Philippa and Peter Hudson are in the chamber today. They are a vibrant, happy and devoted couple, married for six years and have just moved into a new home in Dungog, New South Wales. Philippa is an outstanding person. She was school captain at Dungog High School and an involved sports person in horse sports, water sports and a representative netball player. She trained as a teacher and she loves her work. She continues to work as a tutor.

But three weeks before she and Peter were to be married, a tragic accident meant that she will spend the rest of her life in a wheelchair, paralysed from the chest down. But being the brave and devoted couple they are, Peter and Philippa married 12 months later. Peter or Tiger—I had better call him Tiger; otherwise the people back in Dungog will not know who I am talking about—is Philippa's carer, her soul mate and her life partner. All they want is what any young couple their age wants—they want to have their own family, and those children would come into a loving, secure home environment. Philippa and Tiger can provide the genetic material for their own child, but Philippa cannot bear that child. So they began investigating the possibility of surrogacy. No doubt they could find a willing and generous partner for their family planning, but they do not want to enter a potential legal minefield of extended court procedures and the possibility of losing that child that they consider theirs.

Are members of this House aware that at common law the mother of a child is the woman who bears the child and her husband the legal father? In all Australian jurisdictions there is legislation that states that, where donor gametes—that is ova and sperm—are used to create a pregnancy, the donors are not the legal parents. In New South Wales where Peter and Philippa live, the Status of Children Act 1986 states that there is an irrefutable presumption that the husband of the birth mother and not the semen donor is the father of the child, provided the husband consents to his wife being artificially inseminated.

Of course, Peter and Philippa could go to other countries, enter a legal agreement with a surrogate mother and return to Australia with their child. The child's birth certificate would show them as the parents of the child and Australia would accept it. But this is expensive and would take them away from their home, where they would be getting ready for a new baby, from their loved ones and from their family. Those of us who have children know all the procedures that we go through at that stage of our lives. As Philippa said to me, `I would want to be in close contact with the surrogate mother as the foetus developed, experiencing the growth, the changes and the birth, because that is part of parenthood.'

I know this is not an easy issue for parliament to debate. All too often we avoid the controversial and complex issues. And this is complex. The May 2000 update of obstetrics and gynaecology summarises the laws of each state with respect to surrogacy, and let me quote from it:

Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory have actively legislated to ban surrogacy contracts.

In Victoria, the Infertility Treatment Act 1995 contains a broad definition of `surrogacy arrangement' but the act makes surrogacy arrangements `void and unenforceable'. In Queensland, the Surrogate Parenthood Act of 1988 makes it `an offence for a person to publish an advertisement or a document' and further down, it says:

All surrogacy arrangements made in Queensland are void and cannot be enforced by a court.

Go to South Australia and we have a similar pattern; go to Tasmania and there is a similar pattern. Even in the Australian Capital Territory, where I understand there is a clinic that will support surrogacy, surrogacy agreements are void, pursuant to provisions in the Substitute Parent Agreements Act 1994.

This is the legal minefield that I spoke of. This is the problem that confronts any young couple such as Peter and Philippa, who want to be parents, who had always the natural expectation to be parents, who are biologically capable of being parents but who, through a sad twist of fate, cannot be parents while the legal framework in place in Australia continues to exist. I mentioned that Peter and Philippa could go overseas. Are members aware that Californian clinics advertise their services in Australia and that for a fee of between $50,000 and $100,000 Australian couples can legally have their child in the United States?

We have the usual disagreements between states and territories and the federal law, too. I have already mentioned the common law recognition of parenthood. Are members of this parliament prepared to support the point of view that Peter and Philippa should enter into a surrogacy arrangement that is not enforceable? They could do that in any state in Australia where it would not be enforceable and then, at the end of the 40-week gestation period, they could be dragged into court and lose their child. I cannot think of anything more devastating. Sensibly, they will not enter into any agreement unless the legislation clears the way so that they are confident of the outcome of the pregnancy that they would be involved in with another person. I was talking with an IVF practitioner who advised me that, although the clinic where he operates have the technology to participate in surrogacy, they will not. They will not do it because they are severely afraid that, at the end of a pregnancy, they could be in conflict and could be involved in a very expensive legal procedure, and it is not worth their while. They certainly do not have the insurance to cover themselves for that.

All I am asking is that the issue of human surrogacy be fully investigated by a committee of this parliament and that it determine the conditions under which it should be permitted. Australia should have a policy that comes to terms with the ethical and legal questions raised by the technology of the 21st century. Young couples like Philippa and Peter Hudson who are currently denied parenthood want to take advantage of this technology but, more importantly, they want us as the legislators of the country to listen to their needs.


Mr DEPUTY SPEAKER (Mr Nehl)—Is the motion seconded?


Dr Lawrence —I second the motion and reserve my right to speak.