SURROGACY BILL 2010
Consideration of the Legislative Assembly amendments.
Schedule of amendments referred to in message of 10 November 2010
The Hon. JOHN HATZISTERGOS
No. 1 Page 7, insert after line 34:
11 Geographical nexus for offences
(1) This section applies for the purposes of, and without limiting, Part 1A of the Crimes Act 1900.
(2) The necessary geographical nexus exists between the State and an offence against this Division if the offence is committed by a person ordinarily resident or domiciled in the State.
Note. Section 10C of the Crimes Act 1900 also provides that a geographical nexus exists between the State and an offence if the offence is committed wholly or partly in the State or has an effect in the State.
No. 2 Page 13. Insert after line 8:
28 Maturity of younger intended parent must be demonstrated
(1) If an intended parent was under 25 years of age when the surrogacy arrangement was entered into, the Court must be satisfied that the intended parent is of sufficient maturity to understand the social and psychological implications of the making of a parentage order.
(2) An intended parent who was under 25 years of age when the surrogacy arrangement was entered into must provide evidence to the satisfaction of the Court:
(a) that he or she received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the surrogacy arrangement, and
(b) that the counsellor was satisfied that he or she was of sufficient maturity to understand the surrogacy arrangement and its social and psychological implications.
(3) This precondition is a mandatory precondition to the making of a parentage order.
(4) This precondition does not apply to a pre-commencement surrogacy arrangement.
(5) If the Court grants leave to an intended parent to make a sole application in respect of a surrogacy arrangement that involves 2 intended parents, it is not necessary to establish that the intended parent who is not a party to the application meets this precondition.
(Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [4.30 p.m.]: I move:
That Legislative Assembly amendments Nos 1 and 2 be agreed to.
I speak in support of the Surrogacy Bill 2010 as amended in the other place. I will briefly outline the details of the two amendments. The first amendment adds a new section that extends the geographical nexus of offences in division 2 of part 2 of the bill so that the relevant relationship exists if the offence is committed by a person ordinarily resident or domiciled in New South Wales. The effect is that if a person ordinarily resident or domiciled in New South Wales commits the offence outside of New South Wales territory, the offence is an offence against the law of this State. On the extraterritoriality of offences, Professor Anne Twomey's The Constitution of New South Wales
Early cases … suggested that the State's legislative powers were confined to the area of their territory and could not have an extraterritorial operation. This doctrine … later developed so that a law could have an extra-territorial application as long as it was a law for "peace, order and good government" of the relevant jurisdiction. There must be a connection between the law and the territory in which it was enacted …
The relationship may be presence, residence or domicile … "or even remoter connections".
It is rare for New South Wales to pass laws criminalising conduct that essentially occurred outside the State. However, the reality of surrogacy is that the prohibitions on commercial surrogacy in New South Wales can be and are circumvented by people going to countries that allow it. The Standing Committee of Attorneys-General, as well as various speakers in this and the other place, reconfirmed the position that commercial surrogacy is not in the best interests of children born out of these arrangements. Extending the offences in the bill in this way is consistent with provisions already in place in Queensland and the Australian Capital Territory. It confirms this Parliament's opposition to commercial surrogacy and prevents such arrangements from being used to circumvent our prohibition on it. I support the amendment to the bill.
The second amendment adds a provision dealing with intended parents who are under 25 years of age. The bill provides that they must be 18 years. This is a mandatory condition to the making of the order. New section 28 will require the maturity of the intended parents under 25 years to be demonstrated to the satisfaction of a court and that this was the case both at the time of the application for a parentage order and at the time the preconception surrogacy agreement was entered into. The court can still grant parentage orders to people under 25 years but there will be an added safeguard. I support the amendment to the bill, which will strengthen the legislative scheme requiring all people, especially young people, to think very carefully in light of professional advice about whether surrogacy is the best option for them.
The Hon. LYNDA VOLTZ
[4.33 p.m.]: I seek clarification from the Attorney General. I have just become aware of these amendments and I do not have a great deal of information. What is the effect of these amendments on people in current surrogacy arrangements? A number of people have raised the issue that they are currently involved in legal commercial surrogacy arrangements overseas. Can the Attorney General clarify the effect of this legislation in those circumstances? Also, what are the repercussions of extraterritorial offences that are classified as criminal offences?
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [4.34 p.m.]: The offences are only prospective, not retrospective, for people who have previously engaged in conduct that is sought to be outlawed. The penalties are the penalties set out in the legislation. They will not vary.
The Hon. DON HARWIN
[4.34 p.m.]: The Attorney General was speaking very quietly in his response and I did not hear him. I would be grateful if the Attorney General could repeat his remarks.
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [4.35 p.m.]: As I indicated, there is no retrospective impact in relation to persons who have previously carried out or engaged in conduct that is sought to be prohibited by this legislation. The penalties are the same as the penalties that exist in relation to commercial surrogacy, as outlawed in this legislation.
The Hon. LYNDA VOLTZ
[4.35 p.m.]: I seek clarification. Will a person who is in an arrangement and is currently in the first month of pregnancy be captured by this legislation?
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [4.35 p.m.]: Clause 8 of the bill, on page 6, creates the offence of entering into a commercial surrogacy arrangement. So it applies in relation to entering into the surrogacy arrangement.
The Hon. DON HARWIN
[4.36 p.m.]: If I understand the Attorney General correctly, the operation of this bill would not affect anyone who had already entered into a surrogacy arrangement.
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [4.36 p.m.]: It is prospective and the provision applies after the date the new legislation is proclaimed. After the legislation is proclaimed the offence is entering into a commercial surrogacy arrangement.
The Hon. GREG DONNELLY
[4.37 p.m.]: I will speak briefly to the two amendments from the other place. I support both amendments wholeheartedly. The amendment of Ms Linda Burney, Minister for Community Services, essentially does nothing more than fortify and underpin the legislation that we passed in New South Wales to outlaw commercial surrogacy. I was a member of the committee that inquired into this matter and the issue of commercial surrogacy was ventilated thoroughly in evidence from both witnesses and submissions. The committee produced a report with clear findings. The findings were that to the extent the Parliament was mindful to go down the path of creating surrogacy legislation in this State such legislation should not provide for commercial surrogacy. I fully endorse the amendment of Ms Linda Burney.
As to the amendment of Mr Frank Sartor, members would be aware that during debate in this House I sought to enhance the provision within the Act by making it a condition that would apply to the person bearing the child. Not only did I support the position that the person should be 25 years of age; I moved an amendment to provide that, in addition, the woman would have had at least one live birth. I considered this was reasonable and consistent with legislation in other jurisdictions in Australia and overseas. Members will recall that that amendment was not successful.
That said, it is very pleasing that this amendment of the Hon. Frank Sartor is before us. The amendment, if I could use the word again, fortifies the question of what is a fundamental aspect of this area of surrogacy, which is consent and the ability of the person contemplating becoming a surrogate mother to fully comprehend the implications of her actions. I believe that the amendment of the Hon. Frank Sartor enhances that position. For those reasons I fully support the two amendments.
The Hon. TREVOR KHAN
[4.39 p.m.]: I will read part of what I believe is a thoughtful letter that expresses some of my disquiet about the amendment dealing with commercial surrogacy. I invite the Attorney General to give consideration in due course to what I am about to read. The letter states:
May I start by saying, I personally do not support overseas commercial surrogacy arrangements which diminish women's autonomy or exploit social inequality, such as female poverty.
However, whilst commercial surrogacy is a difficult issue, I am extremely concerned about the effect of this foreshadowed amendment on children who will invariably be born in these legal commercial arrangements overseas, and who will have a shadow of criminality hanging over their heads for the rest of their lives.
If this amendment passes, almost all heterosexual people and gay men who have a child overseas through surrogacy will be made criminals and could face penalties and/or imprisonment. Unfortunately the reality remains that most overseas jurisdictions that Australian heterosexual people and gay men go to have commercial surrogacy schemes (e.g. the US, India etc).
The risk is that their children, through no fault of their own, and who will be born in these legal situations overseas, will face the dilemma of having parents who, for example, may not be able to go to the Family Court for parenting orders because to do so may entail admitting to committing a crime. The end result will be children who are born in legal commercial arrangements overseas and who will have no avenue for even minimal recognition in Australia. Whilst I have no doubt that this is a well-intended amendment, I am concerned that it will have the unintended consequence of hurting children and denying them material legal recognition for the rest of their lives.
Whilst I do not think that the amendment is necessary at all—
and this was in respect of a letter that was forwarded to the Minister—
if you were to push ahead with it, may I propose some suggestions for ways to curtail its unintended consequences:
· Ensure the amendment only applies to jurisdictions where commercial surrogacy is illegal in that country overseas. That is, only criminalise people who break the laws of other countries by commissioning commercial surrogacy arrangements where they are not allowed. This would respect the principle that nation states be given the sovereignty to regulate within their territory, but leaves NSW in the neutral position of not affirming their decision but still recognising that children need to be fairly treated as a matter of priority; and/or
· Suspend the applicability of the criminalisation provision where a foreign court has approved the surrogacy arrangement or granted the intended parents legal recognition as parents. This will ensure that any commercial surrogacy arrangement must be approved by a foreign court - which is likely to inquire into the issue of informed consent by the birth mother, whether the arrangement was lawfully entered into in accordance with the laws of that country etc. It gives the surrogate mother the added protection of ensuring that any commercial surrogacy arrangement must be properly carried out in accordance with the law of that country; and/or
· Add a defence of no knowledge of the law prior to conception - the reality is, this amendment is being proposed without any consultation with affected persons, and these people are unlikely to know that what they are doing will be criminal until it is too late; and/or
· In the worst case scenario, ensure that no criminal proceedings can be brought under the provision without the approval of the Attorney, who must refuse to grant permission where it would harm the interests of the child involved.
I don't support exploitation of poor overseas women in any way, but I don't think criminalising overseas commercial surrogacy in NSW is the answer. People who undergo commercial surrogacy are already denied recognition of their parentage upon return to Australia under the Bill - criminalising their conduct will go one step further and actively contribute to disadvantaging their children far beyond what is being contemplated.
That thoughtful letter gives appropriate consideration to some of the conflicting issues. One of the difficulties I see with this issue is that some quite sophisticated jurisdictions overseas permit commercial surrogacy. Many States of the United States, which one could not say is an impoverished and backward country, allow commercial surrogacy and have protections in place for surrogate mothers. What we are essentially saying is that even though there may be protections for surrogate mothers in sophisticated jurisdictions such as the States of the United States of America—indeed there are protections for all the parties to the process—notwithstanding that, we will legislate to make illegal an act that in those jurisdictions is legal. I consider that to be, whilst not an impossible legal concept, an interesting exercise to engage in.
It may very well lead to a circumstance whereby in order to circumvent this legislation, in their earnest desire to fulfil their maternal and paternal desires of having a child, people will make themselves ordinarily resident in another jurisdiction and, having become ordinarily resident in another jurisdiction and had a child by commercial surrogacy, may very well then in due course transplant themselves back here again without the protections that I believe were the earnest desire of the vast majority in this Chamber to see provided. On the last occasion this bill was before the House I pointed out the difficulty that we are left with the body—the child. If our earnest desire was to see, in a sense, the expectation of so many people for having a child and then having protections for that child, then this style of amendment defeats the goodwill that led to us passing the legislation through the House in the first place.
I understand that we can go to the birthplace of my grandfather and say that we do not want women in India being exposed to the filthy lucre that we can bring from Australia and forcing women to be exploited. But I have difficulties in saying that that applies in sophisticated and wealthy jurisdictions where the protections for surrogate mothers exist. I am decidedly troubled by the amendment. I understand its intent but I think it undermines what we attempted to do on the last occasion.
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [4.47 p.m.]: I will respond to the matters that have been raised so far and, in due course, any further matters that might arise. I inform honourable members who share the concerns of the Hon. Trevor Khan that it is not correct to say that what we are doing through this legislation is denying persons who engage in commercial surrogacy an avenue in which to access the legislation because this legislation also denied an avenue for obtaining a parentage order for anyone who was involved in a commercial surrogacy arrangement. That is the case now and it was the case when the bill was being debated in this House. It is a mandatory pre-condition that a parentage order cannot be made if there is a commercial surrogacy. It does not matter whether the commercial surrogacy was arranged locally or overseas. So that is not the issue here. However, the Act also criminalises persons who are involved in a commercial surrogacy arrangement or who offer to enter into a commercial surrogacy arrangement, and there is a penalty of up to two years imprisonment.
This amendment seeks to expand that to apply to a New South Wales resident or a New South Wales domiciled person who enters into a commercial surrogacy arrangement overseas. It simply extends that prohibition to cases of persons who go overseas or to other jurisdictions where that might be entertained. In respect of the child, it is important to reflect on the conclusions of the Standing Committee on Law and Justice, which considered these different issues. The committee's report stated that inquiry participants almost unanimously expressed their clear opposition to commercial surrogacy. The report further states:
Associate Professor Nicholas Tonti-Filippini, Head of Bioethics at the John Paul II Institute for Marriage and Family, described commercial surrogacy as ‘economic exploitation’ noting that ‘in the areas where it happens the women who agree to be surrogates are nearly always economically disadvantaged.’ Associate Professor Tonti-Filippini added that the fact there was a contract to exchange the child rendered the child a ‘product or an object.
Professor Margaret Somerville from the Centre for Medicine, Ethics and Law at McGill University in Montreal, argued that ‘commercial surrogacy commodifies, objectifies and reifies the transmission of human life from one generation to the next and fails to uphold respect for the passing on of life’ noting that in developing countries it tended to’ exploit very poor and desperate women, who have no other means of support.
They are some of the views expressed during the inquiry. As I said, in formulating this legislation we closely followed the advice of the committee, which heard all the relevant evidence and came to informed conclusions. The Hon. Trevor Khan is correct in saying that a person could defy this legislation. However, such a person would not get a parenting order, and it was never intended that such a person would get a parenting order. Of course, he or she could go down the adoption route. The Government is sending a clear message that it does not endorse commercial surrogacy. Hopefully that message reaches the people who are considering entering into an arrangement of that nature and we will not have the problems to which the committee referred in its report.
Mr DAVID SHOEBRIDGE
[4.52 p.m.]: The Greens oppose these amendments. I recognise the good intentions that underpin both amendments, particularly the first amendment, and the clear aim of reducing the number of commercial surrogacy arrangements that are entered into. Often those arrangements can be to the detriment of the woman who has been given money to provide her womb for the surrogacy. We had extensive debate about surrogacy arrangements and the tenor of that debate reflected the widespread view in New South Wales that commercial surrogacy arrangements should be unlawful and that steps should be taken to restrict them. That is my starting point in considering the first lower House amendment.
Passing a law to make entering into an overseas commercial surrogacy arrangement a criminal act in New South Wales will at best have only a marginal impact on the number of New South Wales citizens who do so. No evidence has been presented suggesting that it will have any meaningful impact on this practice. Indeed, these amendments have appeared very late in the day after lengthy consultation. The legislation that is passed by this House is subjected to full and proper scrutiny over some years, but this amendment has had only a couple of days of scrutiny and consideration and it is not generally supported by the community.
The urge to have a family is overwhelming for many people. IVF procedures are not successful for many couples and it can be difficult to find a person prepared to carry a child under an altruistic surrogacy arrangement. That is the biological and factual reality. Many people driven by that overwhelming urge to have a child will travel to jurisdictions in which commercial surrogacy is not illegal. The Hon. Trevor Khan mentioned States in America, such as California, that have sophisticated laws that deal with commercial surrogacy arrangements. Making entering into those arrangements unlawful in New South Wales will not stop couples from heading off to those jurisdictions. In fact, it will only make criminals of those people for entering into an arrangement that they will enter into in any event. It will not stop the practice.
It may mean that couples who choose an overseas commercial surrogacy arrangement never return to New South Wales. They might make the decision to become parents and in the process they will be banished by this amendment. Alternatively, it could mean that people who enter into such an arrangement will not go through the adoption process to establish parenting rights because of the fear of being prosecuted and facing a two-year jail term. The children that result from these arrangements will suffer unacceptable harm and will not be protected by any law. I accept the Attorney's advice that these surrogacy laws will not apply to any commercial arrangements. I am talking about the adoption laws and the ability to obtain parenting orders under the Family Law Act. That situation will cause unacceptable harm to those children. In the past 24 hours my office has received a number of communications from people who are very concerned about this legislation.
The Hon. Greg Donnelly:
The messages started at 3.00 p.m. today.
Mr DAVID SHOEBRIDGE:
The Hon. Greg Donnelly is correct.
The Hon. Greg Donnelly:
The campaign started at 3.00 p.m.
Mr DAVID SHOEBRIDGE:
The campaign started then because that is when the people of New South Wales were given genuine notice of this amendment and the criminalisation of this activity. One submission received by my office states:
I am writing in relation to the proposed amendment which would criminalise a New South Wales resident from accessing commercial surrogacy outside Australia.
While I understand that commercial surrogacy has been rejected by the New South Wales government for many valid reasons, many families have no choice but to choose commercial surrogacy. I have a dear friend whose second child was born to a surrogate in Canada—she and her husband had no choice but to use a surrogate, as she was told by her doctors that having another child would quite literally kill her. She didn't have a sister or anyone close who could carry a child for her, and yet she so wanted her existing son to have a sibling.
I worry that this amendment says to her son that his birth, his very existence, is "illegal"—that he should not have been born. Yet he is, in fact, a much loved son and brother who knows that his mum and dad went to extraordinary lengths to have him.
Criminalising overseas surrogacy will not stop parents from having children overseas, but it will send a terrible message to the children born from those arrangements. I therefore ask that you vote against this amendment.
Another representation—again received since 3.00 p.m.—states:
I am writing to express my opinion regarding the proposed amendment to the surrogacy legislation. I plead with you not to support this amendment for the rights of all the children currently born through overseas surrogacy arrangements and the children who are about to come into this world under such circumstances such as my own child.
I do not want my child to be born under illegal circumstances and always have this stigma associated with them for their life. They deserve to be treated as normal citizens no matter how they come into the world.
My child is only six months away from being born and it sends shivers down my spine that this legislation could pass and ruin my child's and my family's life.
The Attorney has clarified that the law will be prospective and that, on his reading, it will not criminalise that particular arrangement. However, if the arrangement were entered into a day after this legislation is passed, it would be a criminal act. One further submission is in these terms:
Pursuant to sessional orders business interrupted to permit a motion to adjourn the House if desired.
The Committee continued to sit.
Mr DAVID SHOEBRIDGE:
I am writing to voice my concern about the amendment which was added to the surrogacy bill last night which criminalises residents of NSW who engage in commercial surrogacy arrangements overseas. Hundreds of families in NSW have been created this way—straight couples, gay couples and single people. I am very worried that the children of these families will be stigmatised by the move to criminalise the system which brought them in to the world.
Many people have no other option than overseas surrogacy and I worry that the desire to have a family—which most people take for granted—will drive them to break the law and seek help having children overseas regardless of this new law. This will create families who will be living under the very real threat of prosecution and even jail time. This will put a great deal of pressure on the children and the parents.
The submission went on:
So much about the surrogacy bill is progressive and are welcome. However, I believe the amendment on overseas commercial surrogacy—which was added without public debate and at the last minute—ignores the reality of modern society and put children at great risk of marginalisation and stigmatisation.
The amendment comes from a good place. It comes from a genuine concern to reduce the number of commercial surrogacy arrangements, but it will not have that effect in practice. If it has any effect, it will be only marginal. Children will still be born to these arrangements. What we will be saying to the intended parents is either "You are banished from New South Wales because you entered into this arrangement. Do not return because you will be prosecuted", or "If you do return, you must hide the genesis of your child from the authorities and, therefore, most likely from the child. You must hide the true circumstances in which the arrangement was entered into to avoid criminal prosecution."
Alternatively, and perhaps in addition, such parents will not go through the existing process of adoption or obtaining parenting orders in the Family Court, because if they put themselves through that quite intrusive and intensive process, it will inevitably come out that they have entered into an arrangement involving a criminal act and they will face up to two years in jail. How does jailing those parents help anyone? How can jailing them be anything but a backward step in the best interests of the children who will be created, regardless of what we say in Parliament?
As both amendments have been moved in globo, I speak also to the second amendment to put on the record our objection to it. As I understand it, there is no statement broadly from our society, from this Parliament or from people I have heard make submissions on the matter that people aged 18 to 25 need some kind of special licensing arrangements before they can become parents. There is no suggestion that people aged 18 to 25 have to go through some counselling arrangement before they have children because there is a general presumption that 19-year-olds, 22-year-olds or 24-year-olds are somehow likely to be incompetent or emotionally unstable parents. As a society we do not put restrictions or restraints, or cast aspersions on, parents who are aged 18 to 25—and it would be wrong to do so, because we all know from our personal experience that mothers aged 20 or 22 and fathers aged 24 or 25 are every bit the parent that people aged 26, 27 or 39 are.
It is inexplicable that we should consider placing such a requirement for additional counselling. We are not talking here about the woman who carries the child; we are talking about the prospective parents. Why are we putting in place additional constraints and checks and balances for those parents when, as a society, we have never said—and we never should say—that people aged 22 years are anything other than entirely confident, loving and capable parents, just like somebody aged 32 years.
The Hon. CHRISTINE ROBERTSON
[5.04 p.m.]: I support both amendments. The 25-year age provision was discussed at some length by the members of the Standing Committee on Law and Justice—that is, the age at which people can competently make huge decisions such as handing a baby to a family—
Mr David Shoebridge obviously has not read the bill in its entirety, because the birth mother has incredible rights and her decision is a most significant component of the process.
Mr David Shoebridge:
I was talking to the amendment.
The Hon. CHRISTINE ROBERTSON:
I was talking about 25 years.
Mr David Shoebridge:
That is fine for the birth mother; I am talking about the amendment.
The Hon. CHRISTINE ROBERTSON:
I support the amendment that relates to the 25 years of age provision. I am troubled, however, by the reaction to the amendment that was proposed relating to overseas commercial surrogacy. Altruistic and commercial surrogacy was the crux of the inquiry. This was not an easy process. Many issues were discussed, but this was about the rights of children from surrogacy and about how the process could be mended. We had heard some appalling stories of people having to wait for up to seven years for an adoption process to be sorted through. We considered all these issues, but the most important one was altruistic and commercial surrogacy.
We talked a bit about overseas commercial surrogacy. We did not delve into it too deeply, but it was on the horizon, as it were, and we gave it consideration. Another important issue was State shopping, which is a huge problem. As different States have different laws, obviously people will cross State borders to get what they want. I do not mean it is the same here in Australia as it is in the United States of America, but it is true that different laws in different States make the process either easier or more difficult. People were leaving New South Wales to go to another State because the law in that State allowed them to do things they could not do here. Consistency of laws across Australia is a major issue. The committee did not discuss the international issues in too great a detail.
The New South Wales Act should make it a criminal offence for anyone to deliberately enter into a commercial surrogacy arrangement overseas. This is the case for other criminal offences committed overseas, and I am not troubled by that concept. I was troubled, however, about the potential for retrospectivity, such that people who are currently engaged in the process, believing that they are acting legally in accordance with adoption legislation, would be seen to be engaging in a criminal activity. This provision was not intended for that purpose. That people already engaged in the process could be said to be acting criminally really concerned me. So what did I do? I obtained legal advice. Why on earth was that not done by others before all this email nonsense started today? That legal advice was as the Attorney informed us; it is precise. People will not be entrapped. Many of those who have emailed us today fearing what will happen to them in the future already have children. They are well and truly outside this law and cannot be included. I find this to be a very uncomfortable process. I endorse both amendments and I endorse the bill.
Reverend the Hon. FRED NILE
[5.08 p.m.]: To assist members I shall read onto the record an email I have just received from Linda Burney, who moved this amendment in the other place. In it Ms Burney expands, if you like, the reasons for her amendment. She makes the point that the amendment was passed in the other place without any opposition or objection. She writes:
The amendment, which is attached, will achieve the following:
1. Cementing the Government's position on commercial surrogacy and advance the best interest of children
The position on commercial surrogacy is that it commodifies children and surrogate mothers.
This is the view of the National Health and Medical Research Council, the Standing Committee of Attorneys-General and the NSW Government. Commercialisation of human reproduction is not in the best interest of children born out of these arrangements or surrogate mothers, and therefore it is prohibited in NSW.
2. Closing a loophole in the proposed Bill
In its current form, the Bill makes clear that commercial surrogacy is prohibited in NSW but makes no mention of NSW citizens engaging in commercial surrogacy in other jurisdictions. It is important that the legislation is consistent to give effect to the Government's policy that commercial surrogacy is not supported because it is not in the best interests of children.
3. Preventing exploitation of vulnerable women
Commercial surrogacy carries the risk of (economic) exploitation of women in vulnerable positions, especially in developing countries without strong regulation where surrogacy is a growth industry. If we do not allow commercial surrogacy in NSW, the same law should apply to NSW citizens overseas.
I seek leave to have the remainder incorporated in Hansard
I have discussed this matter in detail with the Attorney-General and he is supportive of the amendment.
Members may have questions about the impact on children born of overseas commercial surrogacy arrangements, which my amendment seeks to prohibit for NSW citizens.
In the discussions and debates on the Surrogacy Bill, two considerations are paramount. The first one is the best interest of children. The second one is that it is wrong to take advantage of women who hire out their bodies because they are poor, either here or anywhere else.
I have not heard any disagreement with either principle in this House or in the other place, nor with the Bill's prohibition on commercial surrogacy in NSW.
In all the discussions and debates considering surrogacy two considerations shine through—commercial surrogacy is not in the best interest of the child born out of such an arrangement, and it is wrong to take advantage of women who hire out their bodies because they are poor.
I believe this is the message this Parliament needs to send to all citizens. Commercial surrogacy—an act that commodifies women and children—is wrong, whether it takes place in Australia or another State or another country. This is the same message that has already been sent in other jurisdictions like Queensland. I am not asking that NSW act alone in this regard.
Having said that, I do agree that we should not punish children for the actions of their parents. That is why I have not moved any amendment to the Adoption Act that would preclude these children from being adopted, nor is there anything in the Bill stopping family law orders being made to provide legal recognition. In other words, children will not be disadvantaged because applications can still be made for them to be adopted or for family law parenting orders.
It is a fact that applicant parents will have to admit that they did the wrong thing under NSW law and accept the consequences. I do not consider this is wrong when all the advice that I have received is that the principle which we are seeking to uphold for the benefit of children and of women is the right principle.
The point of my amendment is to create a very clear deterrent and prevent further growth in the overseas commercial surrogacy industry, and prevent a growing number of disadvantaged children in NSW born through commercial surrogacy overseas.
If it is accepted that commercial surrogacy cannot be supported here, I see no reason why people think it should be accepted overseas. The fact is these are not arrangements that are in the interests or children.
I agree that this is a very difficult judgment call but I urge you to agree with me that the right judgment call is being made to uphold the rights of women while not disadvantaging children.
If you have any further questions please feel free to call me or my policy advisor Wim Schoeman.
Linda Burney MP
Minister for Community Services
I support the two amendments from the other place.
The Hon. JOHN AJAKA
[5.11 p.m.]: I speak in support of both amendments. Last time I spoke on this bill I spoke passionately—some of my colleagues said I spoke a little too passionately but it is an area with which I had some concern. I will speak to the second amendment first, the amendment dealing with maturity. This amendment does not prohibit an intending parent who is under 25 years of age from being able to enter into a surrogacy arrangement, so it is not a prohibition. It merely requires a court to be satisfied that the person has sufficient maturity to enter into the arrangement and has obtained counselling in those circumstances. If a person aged 23, 24 or even 21 clearly demonstrates sufficient maturity and obtains sufficient counselling, the arrangement can be entered into.
If legal advice is necessary and an intending parent is under 25 years of age, the lawyer will know from this legislation that evidence is required demonstrating that the intending parent has sufficient maturity and has had the appropriate counselling. Therefore, I see no reason not to support the amendment. It is in line with the spirit of the committee's report and recommendations. I believe it will assist all parties involved in entering into proper surrogacy arrangements and ensure that all preconditions are satisfied.
I have listened to my colleagues' arguments, which I believe are genuine. I have previously argued that we do not want to create two classes of children where different laws apply to children born in different circumstances so that, in effect, the children become second-class citizens. If we use that reasoning to support the surrogacy recommendation, we need to then go to the first principle, that is, the committee unanimously recommended commercial surrogacy should not be permitted—full stop. Indeed, the committee was of the view that all steps should be taken to discourage and prevent it. If we do that in New South Wales, we are encouraging intending parents to travel overseas, thereby encouraging commercial surrogacy. That could create a two-tier system. For those reasons the amendments should be supported.
The Hon. MATTHEW MASON-COX
[5.15 p.m.]: I wish to support the amendments. I find myself in a rather odd position in that I opposed the original bill but I believe these amendments are an improvement to what is otherwise flawed legislation, so I support them. However, I wish to make a couple of comments. I note the contribution of Reverend the Hon. Fred Nile in relation to what Linda Burney said in the other place and her detailed consideration of the issues. I refer in particular to the comments in the other place of Pru Goward, the member for Goulburn. I place those on record, particularly in light of the comments made by the Hon. David Shoebridge in opposing the amendments:
The strong moral reason for supporting this amendment is the exploitation of women in countries such as India and parts of Asia where the sex trade and organ sale industries flourish. Sadly, the surrogacy industry in particular would be attractive to women in those extremely poor countries ...
Women are not cows; they are not animals and their job is not to bear children for money because other people want children. If it is good enough to ensure that Australian women cannot be exploited commercially for this purpose, out of respect for women around the world—particularly the vulnerable women of Asia and other countries where commercial surrogacy flourishes—we should be particularly mindful that if we do not support this amendment, effectively we are saying that there is one rule for our women and another rule for women in poor countries. That is not good enough. Whilst this Parliament does not have a leading role in international relations and affairs, it should, as much as it is able, uphold Australian values—
I emphasise those words, "uphold Australian values"—
which must mean respect for all and the rights of all to live lives free of exploitation. Voting the right way will reflect our commitment to women in those poor countries and reinforce their rights as human beings.
I do not think the arguments in favour of the amendment proposed by Linda Burney could be put any better than that. Accordingly, I support the amendment. The comments of the member for Goulburn strongly make the case. To oppose the amendment will open the door slightly to permit commercial surrogacy and this is strongly not reflective of the views of the wider Australian community. In my view, these amendments, particularly the amendment of the Hon. Frank Sartor, reflect the serious misgivings held in the wider community about this bill. We are considering the amendments from the other place, but those amendments reflect the wide misgivings of members of the other place about this bill which, I think, is reflective of the wider community. The views of those opposing the amendments are less reflective and it is probably wise if we consider this from the perspective of the number of children who will be affected by the proposed provisions. It is easy to lose one's perspective when we are talking about one child or 10 children. We must also keep in perspective the wider community's views on these issues. These amendments will go some way to addressing those misgivings and, as I stated at the outset, will improve what is otherwise flawed legislation.
The Hon. JOHN HATZISTERGOS
(Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [5.20 p.m.]: I wish to raise a few matters. Many of the matters have been raised by other speakers in this debate, but it is important to emphasise them. Commercial surrogacy was not directly the subject of the committee's report. The committee investigated altruistic surrogacy. To the extent that the committee looked at the issue of commercial surrogacy, however, the committee was not only clear on the matter; it was unanimous. Sylvia Hale, who was a member of the Greens, sat on that inquiry. At no stage during the inquiry did she advocate the case for commercial surrogacy. There is no logic in saying on the one hand, "We are not going to endorse commercial surrogacy in New South Wales" and on the other hand saying, "We will recognise commercial surrogacy if it occurs overseas. We will permit people to go overseas to exploit vulnerable women, and to pay them to bear someone else's child, and then to hand over the child." That was never something the committee endorsed.
The committee, to the extent that it looked at commercial surrogacy, stated in its response, "The inquiry participants almost unanimously expressed clear opposition to commercial surrogacy." The committee ultimately made the recommendation calling for an expanded definition in relation to commercial surrogacy—which is what this bill does. Ms Hale did not object to it at any point; indeed, she supported that aspect. There are other aspects of the legislation that the committee members disagreed on, but with regard to that aspect they were unanimous.
The issue of 18- to 25-year-olds as intended parents has also been raised. The committee also looked at this issue. I make it clear that when the member for Rockdale, the Hon. Frank Sartor, first mooted his amendment he proposed that the intended parents had to be 25 years of age or older. That was his initial proposal. I had a discussion with him about the importance of ensuring that, as far as possible, people who enter into these arrangements are encouraged to go down the surrogacy route, for good reason: they will have access to counselling and legal advice, and they will be clearly across the details of the expectations. Following that, the Hon. Frank Sartor modified his amendment to enable people under 25 years of age to be brought within this legislation, with the additional requirement that the amendment entails. The committee again looked at the issue regarding intended parents. The committee said at page 84 of its report:
There was limited evidence received during the inquiry relating to the importance of the age of intending parents or the duration of their relationship.
The committee also said:
The Australian and New Zealand Infertility Counsellors' Association argued that a minimum age of 25 was appropriate for intending parents and that the relationship "has been sustained for a period of at least 2 years".
The Queensland Commission for Children and Young People agreed with that. With regard to other jurisdictions, in Queensland intended parents have to be 25 years of age or older. In Western Australia, at least one of the intended parents has to be 25 years of age or older. In the Australian Capital Territory, the court making the orders has to take into account whether both of the intended parents are 18 years of age or older, which is an additional requirement.
The Sartor amendment simply seeks to require a focus to be placed on the age of the intended parent. The reason for that is quite clear: to ensure that the intended parent is of sufficient maturity to understand the social and psychological implications of the making of a parentage order. Do we not want that? Do we not want to know that the person in whose care the child is placed and who will have responsibility for the child has the relevant social and psychological ability to carry out the obligations of parentage? I believe this is an appropriate amendment that focuses attention. It does not disadvantage people who are under 25 years of age; it simply ensures that the parties have a focus on the social and psychological implications of the making of a parentage order and that they receive pre and post counselling, which again focuses on those social and psychological implications.
For those reasons I support both of the Legislative Assembly amendments. I hope that in this debate members reflect on the importance of ensuring that the best interests of the child are maintained, as will occur through the second amendment that has been moved. The best interests of the child will also ultimately be maintained, I believe, by ensuring that commercial surrogacy is not something that this Legislature sanctions.
Reverend the Hon. Dr GORDON MOYES
[5.24 p.m.]: On behalf of Family First I indicate that I support both of these amendments, and I am pleased that they have been moved. We believe that commercial surrogacy is illegal in New South Wales under the motions we produce, and we wish to extend that geographically. I cite the example of sex tourism, which is illegal in New South Wales. We do not encourage people to go to other countries for sex tourism, particularly where exploited poor people are involved in sex tourism. In fact, we say that if an Australia citizen is involved in sex tourism in Thailand, or another overseas country for that matter, that person is committing an illegal act as if that person were in New South Wales. We believe that any form of commercial surrogacy in poor countries is an exploitation of those women that must be discouraged. The exploitation of poor women is an age-old problem. Some members of this House have proposed that once more money should be exchanged for a "womb for rent". Commercial surrogacy is illegal in New South Wales, and it should also be illegal if people seek it elsewhere.
We also support the amendment with regard to the age of maturity. Age of maturity is always a difficult issue, given that people mature at different stages. The State cannot prevent pregnancies at any age. But the State can discourage people who are young and immature from becoming pregnant, both through their own actions and through the actions of others. The State does everything it can to seek maturity. For example, in the newspaper today there is an article about an 11-year-old girl who has become pregnant to a 30-year-old man and that man is being charged with an illegal act. But no-one would agree that the 11-year-old girl was acting with a sense of maturity. We recognise that maturity at conception is essential. It is essential for natural birth, in vitro fertilisation, or surrogacy. As the Attorney General said, the amendment does not prevent younger parents from having children via surrogacy. The amendment simply seeks to prevent younger parents becoming pregnant without due consideration and the maximum maturity, which they will bring to their new relationship with the child.
Mr DAVID SHOEBRIDGE
[5.27 p.m.]: It is unfortunate that in what has otherwise been a non-partisan but principled exchange, where genuine differences of opinion have been exchanged in this Chamber, the Attorney General sought by way of his contribution to make it a partisan debate. For the record, where the Attorney characterises opposition to this amendment as seeking to promote or endorse overseas commercial surrogacy arrangements, that is absolutely not the case with regard to any of the contributions I have heard from members who are opposed to this amendment. No-one is seeking to endorse or promote overseas commercial surrogacy arrangements. It is a matter of accepting the social and factual reality that, regardless of what we as members seek to pass as laws in New South Wales, human nature and social reality mean these overseas commercial surrogacy arrangements will continue to happen. It is a question of how the New South Wales Legislature should best deal with that fact. To suggest that those who are opposed to the extraterritoriality of these laws—which is a most unusual step for the Parliament to take—are in some way seeking to promote or encourage overseas commercial surrogacy arrangements is mischievous; indeed, it is simply wrong.
The Hon. TREVOR KHAN [5.31 p.m.]: To prevent this matter from going around in circles, and to prevent the temperature in this Chamber rising unnecessarily, pursuant to Standing Order No. 152 I move:
That the question be amended by omitting "agree" and inserting instead "disagree".
In speaking to the motion I rely upon my previous comment that it essentially relates only to one issue—not to both. I do not seek to amend what has been described as the Sartor amendment; I only seek to amend what I will describe as the Linda Burney amendment. If more time had been available perhaps I would have adopted a different course. I have clearly heard what the Hon. Matthew Mason-Cox said about the Indian situation, and I referred to that myself. As the amendment seeks to adopt a broadbrush approach, I believe it is an inappropriate way to proceed.
The Hon. GREG DONNELLY
[5.30 p.m.]: The two amendments were ventilated in great detail in the other place. The Hansard
detailing those amendments was available this morning for interested members to read. The same issues have been ventilated again this afternoon basically by referring either directly or indirectly to the Hansard
. Importantly, the Attorney General has also made specific and clear reference to the report that underpinned the legislation. That report was prepared very carefully and thoroughly over a period of time. I think the amendments enhance and improve the bill. I say that notwithstanding that I oppose the bill and I do not intend to re-examine the issues as to why I oppose this bill. I think the two amendments fortify and reflect the recommendations of the inquiry and therefore I do not support the amendment moved by the Hon. Trevor Kahn.
The Hon. LUKE FOLEY
[5.32 p.m.]: I did not see this one coming. It is quite a googly bowled up to us at the end of a sitting week. Numerous members who opposed the bill when it was before this House now wholeheartedly support the Legislative Assembly amendments. I voted for the bill and I also wholeheartedly support these amendments, but I want to explain why. I was prepared to accept, particularly after briefings from the Attorney General, that this bill provided for sensible regulation of altruistic surrogacy arrangements in New South Wales. On that basis I am very comfortable with the substantive bill. The first amendment returned to us from the other place is worthy of support because it seeks to ensure that the offence of commercial surrogacy is not one that simply prevails when those arrangements occur within the New South Wales jurisdiction but when citizens of New South Wales go offshore to make such arrangements.
We have a Labor movement in large part because of capitalism and the commodification of people's labour. The Australian Labor Party was created to defend people's lives and relationships from commodification. My party's ethical and humanist traditions reject the intrusion of market capitalism into every aspect of the lives of human beings. I cannot accept a situation where two people can go to a Third World country, engage a commercial surrogacy agency, as it has been put to me in emails this afternoon, and hire a woman, whom I suspect is in a very vulnerable economic position, to have a baby for them. That is a classic example of the intrusion of the market into all aspects of human life, and I reject it. My party's values have always stood against that extension of capitalism over all aspects of life. They are not arrangements that I can find in any way acceptable. If the Legislature provides that these sorts of arrangements ought not be entered into in New South Wales, we ought to similarly reject them when people resident in New South Wales travel outside the jurisdiction to seek to bring them about.
Reverend the Hon. FRED NILE
[5.36 p.m.]: The Hon. Trevor Khan said he had moved his amendment to stop the Chamber from going around in circles. But if his amendment is carried, and I hope it is defeated, it would do exactly that. It will then toss the ball back to the other place, where the members unanimously supported these amendments. I do not think those in the other place will change their minds overnight. It will then come back to us again. The only way to move forward is to defeat the amendment proposed by the Hon. Trevor Khan and allow the two amendments from the other place to be passed by this Chamber.
The Hon. PENNY SHARPE
(Parliamentary Secretary) [5.37 p.m.]: I speak particularly to the amendment moved by my colleague Ms Linda Burney in the other place. As to issue of surrogacy generally, I support in principle the notion that adults in our community can make careful, generous and loving arrangements via surrogacy to allow children to become part of loving families. I believe that single people, heterosexual couples and gay couples should be able to make these arrangements. My support for the arrangements set out in the surrogacy bill debated previously, although I did not speak to it, relied upon the arrangements being made as an altruistic arrangement with the proper protections and support in place for the commissioning parents, the woman who agrees to become a surrogate, and any children that are born as a result of those arrangements.
I do not support commercial surrogacy. I do not believe that commercial surrogacy is in the best interests of children or in the best interests of women. The amendments that were passed in the lower House seek to clarify that the prohibition of commercial surrogacy applies in arrangements made overseas, as well as in New South Wales. Although there have been a number of discussions about this, I place on record the reasons put forward. Those reasons include that without the amendment to the bill put forward by Minister Burney, the bill will not provide reasonable safeguards to ensure that overseas surrogacy arrangements comply with parentage requirements; that the arrangement is altruistic and not commercial; that counselling and legal advice is available; and that informed consent is given. Minister Burney stated in the other place:
It is generally considered that most overseas surrogacy arrangements are commercial in nature and that any related evidence or documentation is largely unverifiable. Further, overseas surrogacy arrangements result in an inability to undertake proper appeal mechanisms or properly uphold the rights of the child or the birth mother.
Without an extra-territorial clause prohibiting overseas surrogacy arrangements, the principle of altruistic surrogacy and requirements for the granting of a parentage order will be undermined. This is because it will not be unlawful for New South Wales couples to arrange commercial surrogacies outside New South Wales. Indeed, it is likely to encourage such persons to make these arrangements outside Australia where measures that promote the best interests of children and prevent exploitation for commercial gain may not be in place.
The intention of this amendment is to close any loopholes in relation to the treatment of individuals who seek commercial surrogacy in New South Wales and overseas. I accept the intention of this amendment as reasonable. However, the consequences of this amendment cause me considerable difficulty. Of all the recent conscience votes, I have had little problem finding my way through the complexities. However, this one brings into play a number of competing principles and challenges for me in relation to the best interests of children and the best interests of women in Australia and overseas. I am troubled by the notion of commercial transactions for the formation of families, no matter how much a family is desired.
The amendment requires me to consider as a legislator the nature of deterrents, the enforceability of these deterrents and who will be punished ultimately. The amendment concerns me because there will be children who will have difficulty accessing the same protections that apply to other children in this State. These are parenting protections that I have fought very hard for as a member of Parliament on behalf of all families. I do not believe commercial surrogacy is a good thing for children. The bill makes it clear, and across Australia it is not something that is supported by our parliaments. I do not agree with a loophole—whether people believe it to be a loophole or not—that would have the effect of making more people likely to enter into such arrangements, no matter how well-intentioned those who seek such arrangements are and how much they desire a family of their own.
The amendment seeks to make this issue very clear and ultimately act as a deterrent to reduce the number of children born under commercial surrogacy arrangements. That is a desirable outcome. Without wanting to turn this contribution into a Robert Oakeshott style speech—I fear I may have done so already—I want to place on record an email I received from Professor Jenni Millbank of the University of Technology, Sydney. I have a great deal of respect for Professor Millbank. I believe she understands these issues better than most and it is worth putting her remarks on the record. Professor Millbank said:
While I agree with Ms Burney there are many reasons to be concerned about the potential for exploitation of participants in international commercial surrogacy I strongly urge you not to support such an amendment.
A provision criminalising participation in paid surrogacy overseas would not prevent intended parents from NSW from engaging in such practices. The evidence from all of the surrogacy inquiries around Australia clearly demonstrates that when faced with legal obstacles, including criminal sanctions, intended parents travelled wherever necessary and paid whatever necessary to pursue their only possibility of having children. In Queensland and, in the past, Victoria, extra territorial prohibitions on surrogacy and payment of egg donors respectively had no effect whatsoever in preventing this.
Such sanctions do, however, increase the incentives for fraud and deception about parentage and in doing so pose a significant risk to the interests of children.
There is already anecdotal evidence that some intended parents returning to Australia from international surrogacy arrangements are presenting themselves to Australian immigration authorities as the birth parents when this is possible (e.g. when a birth certificate has been issued or reissued in the foreign jurisdiction with both intended parents names listed). Extra territorial sanctions will vastly increase the likelihood of this deception occurring. Once such deception has taken place, parents may then feel that they must continue it with the State and also others, including the child—with implications for records of health information for the child as well as access to information about genetic heritage and the birth mother's identity.
Criminal sanctions also mean that parents who do acknowledge the birth through surrogacy are placed in an invidious position when seeking parental status or parental responsibility for the child through the state regime or Family Court orders. If they admit to payment they could be charged with an offence, if they conceal payment they are engaging in perjury (and such concealment may also involve concealing information of the birth mother's identity in order to conceal evidence of payment).
Access to the protection and security offered by a legal relationship with the parents who are raising them is the key benefit to children offered by the Surrogacy Bill 2010. I believe that this amendment would significantly impair this benefit to children, and would do so without reducing the likelihood of payment in international surrogacy.
I place Professor Millbank's remarks on record because I believe members should consider carefully her contribution to this debate. This amendment ultimately forces me to decide whether the best interests of children and women as a group are served by clear deterrents to reduce the likelihood that children will be born by commercial surrogacy. It asks members to balance the reality that there are children here and now in New South Wales, and children who may live in New South Wales in the future, who will be without adequate legal protections that give them the security of their own relationship to their parents.
The great unknown at this stage is what happens when those parents seek parenting orders and/or adoption orders for their children. What happens when they expose themselves to this provision? I acknowledge that nothing in the bill prohibits them from seeking such orders. However, I am greatly concerned that children will be left stranded as a result of their parents' fear that they will not be able to obtain those orders. I seek reassurance from the Attorney General in that regard. Today we are being asked to vote on these amendments. Although I am deeply troubled by this amendment, I will not oppose it. However, I will watch closely the impact on children in New South Wales. If it emerges that a class of children in this State is not afforded the same level of protection that applies to other children, I will fight very hard to have those protections restored.
The Hon. GREG DONNELLY
[5.46 p.m.]: I want to clarify a matter that the Hon. Penny Sharpe referred to in her reflections on the comments of Professor Jenni Millbank of the University of Technology, Sydney. As members would be aware, yesterday afternoon Professor Millbank delivered the John Marsden Memorial Lecture. I do not know whether the Hon. Penny Sharpe attended the lecture. I tried to obtain a copy of the lecture today, given that we would be ventilating this matter this afternoon. The lecture was previewed in various publications online over the past couple of weeks to inform people about the contents of the paper.
The Hon. Penny Sharpe:
I didn't see you there.
The Hon. GREG DONNELLY:
I was not at the presentation yesterday. However, according to the reviews I read, Professor Millbank was arguing the rationality of commercial surrogacy, and she made no apology about it. As I understand it, she believes that commercial surrogacy is not an arrangement that should be outlawed in a secular developed society such as our own. She says it should be on the cards not just for same-sex couples, gays and lesbians, and single persons—
The Hon. Trevor Khan:
You are saying this without access to her paper.
The Hon. GREG DONNELLY:
—but also in regard to heterosexual couples.
The Hon. Trevor Khan:
You are not quoting her paper. You are quoting from third parties who wrote a review.
The Hon. GREG DONNELLY:
In other words, heterosexual couples under the arrangement, even if the woman is fertile, should be able to contemplate commercial surrogacy. Last Sunday Adele Horin in a review commented on the speech delivered yesterday afternoon. Her article is worth reading. I am sure that all members read it on the weekend so I will not quote it all now, but I will read one paragraph that I believe sums up the concerns of the majority of members in this House. Adele Horin said:
Outsourcing surrogacy to countries like India or Ukraine opens the women there to exploitation of the kind our MPs are keen to avoid here.
In laissez faire fertility markets overseas, poor women have no protection … they give up the right to be able to change their mind after the birth.
Mr David Shoebridge promoted the idea of California as being enlightened in terms of its legislative framework. Even in the state of California surrogate mothers do not have rights. The article stated:
Even in parts of the US, surrogate mothers lack basic protections.
So in a First World country, which is at the cutting-edge of biotechnology, there are no basic rights for surrogate mothers.
DEPUTY-PRESIDENT (The Hon. Kayee Griffin):
Order! For the most part the debate has been orderly and conducted in good spirit, and I would hope that it continues in that vein. Regardless of their point of view on any particular issue members should show respect to the member with the call by listening to his contribution in silence.
The Hon. GREG DONNELLY:
This is a very important debate on amendments to the bill and it is important to put the full picture clearly so that honourable members can inform themselves before they make a decision. There are people who are advancing the case that commercial surrogacy should be an absolute right. What we have done in this legislation, through the process of an upper House inquiry and a report and deep reflection, is produce a bill—which is soon to become a Act—outlawing commercial surrogacy. I believe that is the position this House should support.
The Hon. HELEN WESTWOOD
[5.51 p.m.]: I have some concerns with the amendments. I wish we were dealing with the amendments separately but I will deal with the easiest one first. I am comfortable supporting the amendment concerning the maturity of younger intended parents. Younger people will not be prohibited from entering into surrogacy arrangements, and I think that counselling before parenthood is a very good idea—it is a shame it does not happen more often. I am of the view that older parents do not necessarily make better parents. Having had both my kids before I was 25 and my kids having done the same, I believe that good parenting is not practised only by those who are older than 25. Counselling before going into a surrogacy arrangement for people under 25 is reasonable.
I will not oppose amendments and thus prevent the bill being passed. It has certainly taken some time to get to this point and I do not want to do anything that would prevent the bill from becoming law. However, I have concerns about the first amendment. Despite all the work that has been done on this issue, this is one area that we have not examined. No-one knows what the consequences will be for children. Do we know how many who choose to go into commercial surrogacy arrangements overseas return with their children even though the arrangement was prohibited? What would that mean for those children? Will they then be denied the same rights as other children? I doubt that parents will proceed to an adoption if they risk being prosecuted or jailed. I believe it places the children at risk.
I absolutely support the principle of a prohibition on commercial surrogacy. I have heard the argument that commercial surrogacy is the exploitation of women. I would argue that it is the exploitation of poor women. As a feminist I would never endorse it. But I am greatly concerned that we do not really understand what the consequences of this amendment will be when it becomes law for children born of those commercial surrogacy arrangements overseas. I know there will be a review in three years, but I would have preferred a much better examination before we got to this point. I also would have preferred if there were some way of monitoring the situation so that, if needs be, we could revisit the legislation to ensure that these children are not disadvantaged in any way. However, I probably will not oppose the amendments because I do not want to prevent this bill passing into law.
Question—That the amendment of the Hon. Trevor Khan be agreed to—put.
The Committee divided.
Question resolved in the negative.
Amendment of the Hon. Trevor Khan negatived
Reverend Dr Moyes
Question—That Legislative Assembly amendments Nos 1 and 2 be agreed to—put and resolved in the affirmative.
Legislative Assembly amendments Nos 1 and 2 agreed to.
Resolution reported from Committee and report adopted.
Message forwarded to the Legislative Assembly advising it of the resolution.