Navigating Surrogacy and Family Law: Legal and Ethical Implications in NSW

Thursday 26th of September 2024

Legal Studies

Syllabus Topic

Option 3: Family

Contemporary issues concerning family law

surrogacy and birth technologies

INTRODUCTION

The rapid advancement of birth technologies has transformed the landscape of family law, particularly in the realm of surrogacy. As societal norms evolve and reproductive options expand, the legal implications surrounding surrogacy have become increasingly complex. This contemporary issue raises critical questions about parental rights, the ethical considerations of assisted reproductive technologies, and the legal protections needed for all parties involved, including intended parents, surrogates, and children.

BACKGROUND INTO CONTEMPORARY ISSUE

Surrogacy involves a contractual agreement in which a person, known as the surrogate, agrees to carry a child on behalf of intended parents, who will not have any responsibility for raising the child. The child may or may not be biologically related to the surrogate or the intended parents.

There are two primary types of surrogacy: commercial surrogacy, which treats the arrangement as a paid service, and altruistic surrogacy, where the surrogate does not receive any extra compensation beyond the necessary expenses for the pregnancy and delivery. In New South Wales (NSW), commercial surrogacy is banned, as it is throughout most of Australia, with the exception of the Northern Territory. To regulate surrogacy arrangements in NSW, the Surrogacy Act 2010 (NSW) was introduced.

LEGAL RESPONSES

Prior to the Surrogacy Act 2010, legal recognition of parents for children born via surrogacy was determined by federal laws with ‘presumptions of parentage,’ making it difficult for courts to enforce surrogacy agreements.

The case of Re Michael Surrogacy Arrangements [2009] highlighted the challenges in ensuring children were placed with intended parents rather than biological grandparents.

The Baby Gammy case involved a Thai surrogate, Chanbua, who bonded with one of the twins while the Australian intended parents wished for that child to be aborted, leading to Chanbua requesting the return of the other child.

The Assisted Reproductive Technologies Act 2007 (NSW) was influenced by advocacy from Natalie Parker in the "secret son" case, establishing a database for children from IVF to contact their egg and sperm donors. This act included an amendment limiting sperm use to five women for lesbian couples to prevent potential incest.

The Surrogacy Act 2010 (NSW) was introduced to regulate surrogacy arrangements in NSW, imposing penalties for commercial surrogacy with fines up to $110,000 or two years’ imprisonment for individuals and up to $250,000 for companies facilitating arrangements.

OTHER RESPONSES

ABC Four Corners - "Made in Thailand" (2014)
This program addressed the media outrage following the Baby Gammy case, highlighting the ethical and legal dilemmas of commercial surrogacy, and prompting public demand for reform in surrogacy laws.

ABC Foreign Correspondent - "The Baby Makers"
This episode explored the commercial surrogacy industry in India, showcasing the complexities and risks involved for surrogate mothers and intended parents, reinforcing the need for regulatory oversight.

ABC Foreign Correspondent - "The Last Resort"
Focusing on a commercial surrogacy organization in Mexico, this report illustrated the challenges faced by Australian couples seeking surrogacy abroad, further emphasizing gaps in domestic legislation.

"Australian Commercial Surrogacy Laws Leave 6-Month-Old Twins in Legal Limbo"
This article highlighted the consequences of inadequate legal frameworks, revealing how existing laws can leave children in precarious situations and the urgent need for comprehensive legal reform.

"Government Toughens IVF Laws to Protect Embryo Donors and Kids"
This report covered the NSW government's efforts to enhance protections for embryo donors and children born through IVF, underscoring the necessity of safeguarding vulnerable parties in reproductive technologies.

"Dead Man's Sperm Off Limits to Partner Wanting Baby, Court Rules"
Initially, the court ruled that a deceased man’s sperm could not be used, raising ethical questions about consent and reproductive rights. This decision has since been reversed, reflecting evolving legal interpretations in reproductive cases.

SOURCES

NSW Government: Assisted Reproductive Technology

Victorian Department of Health: Surrogacy

Australian Government: Surrogacy in Australia

NSW Legislation: Surrogacy Act 2010 (NSW)

Thomson Reuters Westlaw Australia: Re Michael [2009] FamCA 691

The Conversation: Baby Gammy case reveals murky side of commercial surrogacy

NSW Legislation Register: Assisted Reproductive Technology Act 2007 (NSW)

Sydney Morning Herald: Government toughens IVF laws to protect embryo donors and kids

NSW Legislation: Surrogacy Act 2010

ABC News: Four Corners- Made in Thailand

ABC News: Foreign Correspondent - The Baby Makers