Commercial surrogacysome troubling family law.docx

1、Commercial surrogacy some troubling family lawCommercial surrogacy some troubling family law issuesMary Keyes and Richard ChisholmThe aching desire for a child felt by those unable to conceive by normal means, poverty and the profit motive can be a terrible combination resulting in exploitation (esp

2、ecially of the poor), abuse of human rights and the commodification of children. John PascoeIntroductionCommercial surrogacy has flourished in recent times, apparently increasing by 1000% internationally between 2008 and 2010. Countries have responded to the problem in different ways. In Australia,

3、surrogacy has recently been made the subject of specific legislation in all states and territories apart from the Northern Territory. The legislation draws a fundamental distinction between altruistic surrogacy and commercial surrogacy (the subject of this article). Surrogacy is commercial if the co

4、mmissioning parents have agreed to pay the birth mother more than reimbursement of her expenses incurred in the pregnancy and birth. Under the surrogacy legislation, it is usually a crime to enter into a commercial surrogacy agreement, advertise for surrogacy arrangements, and procure surrogacy arra

5、ngements. In three jurisdictions, the offences are expressly stated to apply with extraterritorial effect, in order, it has been said, to prevent evasion of the legislation and exploitation of women in developing countries. By contrast, unpaid (altruistic) surrogacy is permitted, subject to extensiv

6、e and diverse regulations which are designed to protect the parties to surrogacy arrangements and the children born from them.Thus, making commercial surrogacy arrangements involves serious criminal offences under the laws of most Australian jurisdictions. Yet the Family Court has seen an increase i

7、n applications for parenting and other orders under the Family Law Act 1975 arising from commercial surrogacy arrangements, mainly involving children from Thailand and India, where such arrangements are (as yet) permitted by law and where poor women can be found who, for a payment, will donate eggs,

8、 carry and give birth to a child, and then relinquish the child forever to the Australian commissioning couple, who return to Australia with the children. In most of the cases, one of the male commissioning parents is the genetic father of the child. In the published cases, the applicant commissioni

9、ng parents then come to the Australian family courts seeking orders that they have parental responsibility, and, less commonly, that the applicant who has donated the sperm from which the child was born should be found or declared to be the childs father. At the time of writing there were sixteen re

10、ported cases in which the commissioning parents applied to the Family Court for parenting orders. Not surprisingly, this controversial topic has been the topic of a number of recent publications in Australia as well as elsewhere. In this article we hope to contribute to the rapidly-evolving discussi

11、on about how Australia might achieve a coherent position on commercial surrogacy that reflects informed and deliberate decisions about some difficult policy issues. The present discussion is limited to family law, and especially the issues that have surfaced in the reported cases. First, it addresse

12、s the apparently simple question: Who are the parents of surrogacy children? We review the legislation and case law and try to identify what points are clear and what issues still need to be resolved. Second, we review discretionary decisions, such as making parenting orders and declarations of pare

13、ntage. Should the court be making such orders if doing so gives effect to criminal arrangements? And when it appears that the commissioning parents or others have acted criminally in participating in the surrogacy agreement, should the court refer the papers to the appropriate authority to consider

14、prosecution? We review the answers that first instance judges have given to these questions, and suggest that a satisfactory outcome will require the Full Court to address certain fundamental questions of principle. We conclude that achieving a principled and consistent Australian approach to commer

15、cial surrogacy will require a cooperative effort between the Commonwealth and the states and territories. Part 1: Who are the parents of surrogacy children?IntroductionIt is surprisingly difficult to identify the legal parents of children born as a result of international surrogacy arrangements. Thi

16、s section examines the rather technical law involved. It deals especially with the Acts presumptions of parentage, sections 60H and 60HB, and the admissibility of DNA evidence based on samples illegally taken from children. It also raises a question yet to be the subject of judicial decision, namely

17、 whether parentage is to be determined by Australian law, or the law of the country in which the child was born. We consider later whether the court should grant declarations of parenthood in surrogacy situations: that question involves policy issues to be reviewed in Part 2.The international surrog

18、acy arrangements that have appeared in the Australian case law generally follow a pattern. The commissioning couple make an arrangement whereby a woman, who is not related to the commissioning couple and is unknown to them before the arrangement, becomes pregnant with an embryo created from the sper

19、m of one of the commissioning couple and an egg obtained from another woman who is also unrelated to and unknown to the commissioning couple. The intention is that the child will be handed to the commissioning couple at birth and brought up by them as their child, and in all the cases this is what h

20、as happened. By the time the case comes to court, the child has been in the care of the commissioning parents for some months, and has had no contact with the birth mother or egg donor. We will need to consider certain provisions of the Family Law Act 1975 dealing with parentage in particular situat

21、ions. But it is useful to put them in context by first considering what would otherwise be the position under the Family Law Act. There is no relevant generally applicable definition of parent in the Act. It has been held that the word parent when used in the Act means a person who has begotten or b

22、orne a child a biological mother or father of the child, as distinct from a person who is merely caring for a child as a parent would do. It follows that for the purpose of the Family Law Act the identity of a childs father, mother or parent is probably determined by reference to facts existing at t

23、he time of the birth. The subsequent care of the child would not seem relevant to determining who is the (biological) father, mother or parent (of course the court may make orders placing the child in the care of a non-parent if it considers that doing so will be in the childs best interests).If it

24、were not for the specific provisions of the Act that will be examined below, identifying the childs father in the typical commercial surrogacy situation would seem straightforward. If the sperm is that of the male commissioning parent (or one of them in the case of a same-sex male couple), in circum

25、stances where everyone envisages that he will act as the father, he would naturally be seen as the biological father. If the sperm had come from some other man, the commissioning parent would not be the father. Identifying the mother in gestational surrogacy situations, however, would not be quite s

26、o simple. Given the authorities to the effect that the Act refers to biological parents, it seems clear that a commissioning woman who seeks to mother the child, but has no biological connection with the child, would not be seen as the childs mother under the Family Law Act. Is the mother, then, the

27、 woman who gives birth to the child? When a child is born to a woman from her own egg, she is obviously the biological mother. But in gestational surrogacy situations such as those in the international cases, we might hesitate to say whether the mother is the egg donor or the woman who gave birth to

28、 the child. Neither conforms entirely to the conventional meaning of mother the egg donor provided half the childs genetic inheritance, but was not pregnant with the child; and the birth mother, who was, lacks a genetic link with the child. Under the surrogacy arrangement, neither woman is intended

29、to have a role in the childs life, but if words like parent in the Act refer to biological parents, this may not necessarily preclude either the birth mother or egg donor from the status of a parent. One might contemplate the possibility of some kind of recognition of both women, but it has been poi

30、nted out that many provisions assume that a child will have one father and one mother, so this does not seem an option under the Family Law Act as presently drafted. As we will see, there are now specific legislative provisions about parentage, but as far as we are aware there is no Australian court

31、 decision on whether aside from such specific legislation the mother of a child born following egg donation would be seen as the birth mother or the egg donor, or whether the answer might turn on particular circumstances.In short, in the absence of any legislation specifically dealing with the quest

32、ion, in a gestational surrogacy situation the male commissioning parent who supplied the sperm would probably be the legal father under the Family Law Act, but it would be uncertain whether the mother would be the birth mother or the egg donor. We now consider the impact of the specific provisions o

33、f the Act relating to parentage, starting with those that contain presumptions of parentage.Presumptions of parentage under the ActThe Family Law Act 1975 contains a number of presumptions of parentage (we deal below with section 60HB and 60H, which do not create presumptions but are relevant to determinin