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Who the law recognizes as the legal parent in a surrogacy arrangement can come as somewhat of a surprise to those who are exploring surrogacy as an option to create a family. A case decided by a Family Court Judge in 2009, provided a perfect illustration of where the law hasn’t kept up with modern science and the possibilities offered by Assisted Reproduction Treatments (‘ART’).

So, who are the legal parents?

In this case, a young woman found herself unable to fall pregnant as a result of having undergone a hysterectomy following a diagnosis of cervical cancer. Sometime later, her mother stepped in and gave her daughter the ultimate gift of acting as a surrogate mother for her daughter’s baby. The surrogate in this scenario (who of course was also the intended grandmother) was impregnated with an embryo created through ART with her daughter’s egg (that had been harvested prior to her cancer treatment) and her son-in law’s sperm. Curiously, when the baby was born, the law recognized the surrogate as being the mother and her partner as the ‘other parent’ – despite the fact that they were not biological parents.

This peculiar anomaly occurred because so far as the Family Law Act is concerned, a woman who has given birth to a child through ART is recognized as being the Mother, and her partner (if she has one) is recognized as being the other parent.

Get a legal framework in place

While, correcting parentage in this case was a mere legal formality for this family, one can see the potential for great anxiety and legal disputes to arise when there is not a comprehensive legal framework in place to cater for the specific challenges that are likely to emerge.

A story that highlights the inadequacy of the law is that case of a hospital worker who was seeking legal advice as to how she should handle a slightly sticky situation that had occurred in a surrogacy arrangement. The specific issue that had arisen was that the surrogate mother and biological parents weren’t seeing ‘eye-to-eye’ on the newborn baby’s post natal care - placing the hospital staff in a difficult position.

Private agreements before the baby’s birth are not legally binding

The legal answer in this case was simple, albeit unsatisfactory, in that any private agreements made between the parties prior to the baby’s birth were not legally enforceable and that the surrogate mother was legally entitled to call the shots until such time as a court order was obtained to correct the record. No doubt this was a bitter pill for the biological (and intended) parents to swallow at the time.

What are the reforms required for surrogacy laws?

There is no doubt that more specific and consistent legislation is required at both Federal and State level. In my opinion, such reforms are required in relation to both altruistic and commercial surrogacy so as to implement appropriate protections for the surrogate and the intended parents - but most importantly to gain a clear line of sight over protecting the best interests of the children born through such arrangements.

In April this year, the House of Representatives Standing Committee on Social Policy and Legal Affairs delivered a report entitled ‘Surrogacy Matters, Inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements’. That report made ten recommendations that included appointing the Australian Law Reform Commission with the task of developing a model national law to better regulate altruistic surrogacy. Notably, the Standing Committee also recommended that the practice of commercial surrogacy remain illegal in Australia and that the Australian Government establish an interdepartmental task force to investigate and report upon international surrogacy.

In the meantime, the Courts are forced to grapple with laws and public policy considerations that conflict with the practical realities of what is occurring within our society and most importantly the welfare of children born through surrogacy arrangements which is and ought to be the paramount consideration.

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