George Christensen (Dawson, National Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee on Social Policy and Legal Affairs, I present the committee's report, entitled Surrogacy Matters: Inquiry into regulatory and legislative aspects of international and domestic surrogacy arrangements, together with the minutes of proceedings. I seek leave of the House to make a short statement in connection with the report.

Leave granted.

For many Australians, having children and founding a family is an important and natural part of their lives. However, for some this dream does not come easily and, when other avenues have been exhausted, options for surrogacy are considered.

Surrogacy raises challenging and complex ethical and legal issues. High-profile offshore surrogacy cases involving Australians have highlighted these ethical issues, the possibilities for exploitation and the importance of ensuring that the best interests of the child are protected.

In Australia, surrogacy is regulated through state and territory legislation. While engaging in commercial surrogacy remains illegal in all Australian jurisdictions, many permit altruistic surrogacy arrangements, although regulatory requirements vary across borders. For intending families, this may frustrate their efforts to find a suitable surrogate and result in inconsistent approaches that at times lack the full suite of protections and checks for all parties.

The inquiry has revealed that many Australians are pursuing offshore surrogacy arrangements because of the difficulties of negotiating altruistic arrangements in Australia. In making recommendations, the committee considered carefully the differing perspectives presented by a range of government organisations, senior judicial officers, academics, industry, interest and religious groups. First and foremost, the committee recommends that the practice of commercial surrogacy remain illegal in Australia because of the significant potential for exploitation.

The committee supports options for altruistic surrogacy in Australia and recommends the development of a nationally consistent legal framework. The committee recommends that the Australian Law Reform Commission be tasked with developing a model national law to regulate altruistic surrogacy, with particular consideration to be given to the best interests of the child, the surrogate's ability to make free and informed decisions, ensuring the surrogate is protected from exploitation and legal clarity about the resulting parent-child relationships. We ask that the Law Reform Commission also consider issues including counselling, background checks and independent legal advice for all parties, the transfer of parental responsibility, reimbursement for the surrogate and the need for a closed register of surrogates and intended parents. Following this, agreement on a national approach can then be sought from all states and territories.

We also considered the issue of those who may engage in offshore surrogacy arrangements and recommended that such arrangements be rigorously scrutinised. The committee recommended that practices in key surrogacy destination countries be assessed to ensure that they are consistent with the principles of the proposed national law. Where Australians have sought a passport for a child to return to Australia, the committee has recommended that an assessment to ensure that no Australian or international laws on surrogacy have been breached and that screening should be undertaken by the Department of Immigration and Border Protection. I note that the minister is at the table and he will love this recommendation: we ask that the Minister for Immigration be given the power to make determinations in relation to the welfare of the child where breaches have been found to have occurred. Congratulations, Peter, our recommendation would have you be guardian to a whole heap of surrogate children.

In concluding, I would like to thank all of the individuals and organisations that provided submissions and testified before us. I want to pay my respects to the many families who provided the most intimate of stories, outlining their many experiences with all aspects of surrogacy. These accounts formed the core of the committee's deliberations and have provided an insight that could not otherwise have been gained.

Before I commend the report to the House formally, I do want to give my thanks to my other committee members, in particular the deputy chair, the member for Newcastle, who has been there for every inquiry we have done, and I want to pay my respects to the active members of the committee, most notably the member for Moreton, the member for Griffith and the member for Macquarie. I also want to thank members of the secretariat, led by Dr Anna Dacre but ably assisted by her colleagues. We have Muz Ali listening in the advisers box; he has done a hell of a lot of work for this report. We also have Peter Pullen and Jess Hargreaves, and they have done a tremendous amount of heavy lifting, in particular with this report, which we have truncated to fit with what we think might be the timing of parliament. We have been able to get this done in a very short amount of time, and it is a report that is very big on quality in terms of the recommendations.

This committee has been able to deliver seven reports to this parliament, focusing on a range of issues whether it be crimes at sea, Australian South Sea Islanders, child support or this very deep and intensive issue of surrogacy arrangements. We have worked very well as a committee. Who would have thought the member for Newcastle chucking a hard-core, right wing, ultraconservative culture warrior into the role of chair of the Social Policy and Legal Affairs Committee, with an Emily's List deputy chair and a couple of other Emily's List people and the Labor left convenor, the member for Moreton, would actually produce these results, but it has. We have worked very well. I thank them, I thank the secretariat, I thank you for your indulgence, Mr Deputy Speaker, and I commend the report to the House.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

by leave—I thank the Chair of the House of Representatives Standing Committee on Social Policy and Legal Affairs, the member for Dawson, for his comments and for tabling this report into the regulatory and legislative aspects of international and domestic surrogacy arrangements. As the chair commented, we are an unlikely couple in this parliament and we have probably spent far more time together during this parliament than anyone would have imagined. It has led to robust and frank discussions around the table and I think the committee has been able to table some very good reports to the parliament.

As deputy chair, I would like to make a few additional comments and I will try to pick up on some of the areas that the chair did not touch on. This inquiry has traversed some really difficult terrain over the last 12 months. The inquiry was born from a sole recommendation of the committee's previous report, which followed a roundtable on surrogacy, tabled in this House in March last year. I too, at the start, give my sincere thanks to the committee secretariat, who have worked so diligently not just on this inquiry but throughout the course of this parliament. We are privileged to have access to people with tremendous research skills and a great depth of knowledge, and they have helped us to pull together the best reports that we possibly can. Given the breadth of the inquiries this committee takes on, the committee has to work tremendously hard to make sure that all of those inquiries, all of the hearings, run as smoothly as they do.

As the chair mentioned, this inquiry received 124 submissions. We held six public hearings here in Canberra. We were able to hear from the key witnesses in this area, which included government organisations, academics, judges, private individuals and families who detailed their lived experience of international and domestic surrogacy arrangements. I especially want to thank those people who gave evidence as intending parents, surrogate mothers, relinquishing mothers, donor conceived children and adoptees. Your willingness to share very personal, intimate details of your lives and those of your families, friends and loved ones was both generous and extraordinary. The committee remains deeply indebted to you for your unique insights.

International and domestic surrogacy arrangements are deeply complex matters that raise important legal and ethical considerations. The diverse nature of the legislative framework that regulates surrogacy in Australia introduces new complexities, while, in my view, all the time failing to keep pace with advances in reproductive technology and the rapidly growing trend of Australians travelling overseas for surrogacy. The need for reform of Australian law is clear, and this report makes recommendations that go at least some way to addressing existing problems.

It is important to note at the outset that this report does not recommend any change to the current prohibition of commercial surrogacy in Australia. While this will reassure some Australians, I know that it will also disappoint many others who gave evidence throughout the inquiry in favour of a well-regulated system of commercial surrogacy in Australia. The Chief Justice of the Family Court of Australia, Diana Bryant, for example, argued:

If we want to regulate international surrogacy in some way—that is, regulate who can bring children into Australia and require them to be compliant with certain requirements—then I am inclined to think that we also should have some capacity for commercial surrogacy in Australia; otherwise we are being a little inconsistent.

She added:

I do think it is somewhat hypocritical of us … to say, 'On ethical grounds we don't allow commercial surrogacy' when we allow our citizens to go offshore and engage in commercial surrogacy and bring children back here.

I agree—and I have little doubt that this is an issue that the Australian parliament will be revisiting in the future.

Australia currently accounts for 25 per cent of global commercial surrogacy arrangements. That equates to about 1,000 babies per year, yet we have no legislative framework to properly regulate this practice. This is not, in my view, a sustainable position. When it comes to our domestic arrangements, the disparity in legislative regimes around Australia adds additional layers of complexity, resulting in a range of inequities. That is why the committee has recommended the development of a model national law to facilitate surrogacy arrangements in Australia.

We agree with the Australian Human Rights Commission that any such law must be guided by key principles to ensure that the best interests of the child are protected, the surrogate mother is able to make free and informed decisions without exploitation and that there is clarity around parent-child relationships. Importantly, the committee notes that all legislation in this area must be non-discriminatory. We cannot have surrogacy laws that discriminate on the basis of sexual orientation, gender identity, intersex status, marital status or sexuality. Future laws should also allow for adequate compensation for the birth mother—covering legal, medical and other expenses incurred as a consequence of the surrogacy—with further consideration given to the possibility of additional compensation for the 'burden and risk' faced by the birth mother.

Significantly, the committee also recommends that an audit be undertaken of all surrogacy destination countries to assess the extent to which surrogacy practices in these countries meet the requirements laid out clearly in the report and detailed in recommendation 3, which go to supporting the human rights of children and birth parents so that they remain free of exploitation.

The report also includes important recommendations regarding birth certificates of children born through surrogacy, the provisioning of comprehensive Australian government advice and information on surrogacy arrangements and the development of a regulatory platform for Australian citizens who undertake international commercial surrogacy. There is much work to be done, but this report is indeed a good start. I commend the report to the House.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Does the member for Dawson wish to move a motion in connection with the report to enable it to be debated on a future occasion?

George Christensen (Dawson, National Party) Share this | Link to this | Hansard source

Now we have heard the yin and the yang, we can have some zen. I move:

That the House take note of the report.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

In accordance with standing order 39, the debate is adjourned. The resumption of the debate will be made an order of the day for the next day of sitting.