Time to strengthen our lax surrogacy laws

Nationwide regulations are urgently needed to cover situations when Australians are engaging surrogates to have children for them.

The range of assisted reproductive technologies available today presents many legal, moral and ethical challenges. These are challenges we can no longer ignore and require national, state and international leadership.

In Australia, altruistic surrogacy is permitted in all states and the ACT, with the proviso that reasonable costs and expenses can be paid only. ACT, NSW and Queensland couples are prevented from seeking commercial surrogates outside Australia. The other states do not prevent residents from seeking surrogates on either an altruistic or commercial basis outside Australia. The Northern Territory has no surrogacy laws. All jurisdictions with surrogacy laws require counselling to be undertaken in some form but, at this stage, only Victoria requires background checking.

I have no doubt that over-whelmingly, babies born through surrogacy have loving, protective parents and families.

However, the recent case of baby Gammy highlights the need for clear and consistent policies that protect children from potential risks.

The arrest of a biological father of twin surrogate children in NSW this month further emphasises the potential risks to children. 

It is well known that predators can be very determined and will seek out ways to procure access to children. It is not unrealistic to consider surrogacy as one method to do this.

The current practise of surrogacy does not adequately consider the risks to the child, nor to surrogate mother or the intended parents.

We apply tests when people are working with children, or when they foster or adopt, so why don’t we consider this for children born into surrogate families as well? Australia is a party to the 1995 Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, which sets out a range of standards for countries to follow that emphasise the best interests of the child and minimise the risk of exploitation and trafficking of children. A similar set of standards does not currently exist in the surrogacy space. 

Surrogacy is a pre-planned arrangement, often by individuals and couples who yearn to become parents and can involve different genetic contributions from the commissioning parents.

Under the Convention on the Rights of the Child, which Australia ratified in 1990, children are afforded a range of rights, including the right to be safe and protected from harm, to be cared for and nurtured, as well as to know who they are and where they came from.  They also deserve robust legal guarantees in terms of citizenship and parentage. Given all this, effective and nationally consistent regulation of surrogacy, including suitability assessments, would provide additional safeguards for children who may be at risk.

There are other options, too, that would-be parents might like to think about. There are now more than 40,000 children in Australia’s out-of-home care systems. These  children desperately need families who can give them a sense of belonging, stability and love. Combined with great parenting, these are the things that will make the most difference for these children and allow them to reach their full potential.

Megan Mitchell is Australia’s National Children’s Commissioner and a foster care ambassador