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Who's Holding the Baby?

Victorian Law Reform Commission

(2006) 80(1-2) LIJ, p. 88

The VLRC has asked the government to adopt a clear position on whether the law should allow altruistic surrogacy.

The Victorian Law Reform Commission (VLRC) has recommended clarifying the state’s confusing surrogacy laws in its latest position paper, but the interim recommendations hinge on the state government’s acceptance of the continuation of altruistic surrogacy.

The Infertility Treatment Act 1995 prohibits commercial surrogacy but is silent on altruistic surrogacy, effectively allowing it to occur.

It is not an offence for a woman to conceive a baby and then hand it over to another person or couple to raise. However, the Status of Children Act 1974 does not recognise the commissioning couple as legal parents.

Commissioning parents who want a surrogate to become pregnant with an embryo formed with their gametes (sperm and eggs) are effectively stopped from using assisted reproductive technology (ART) services because eligibility criteria require the surrogate and her partner to be "unlikely to become pregnant" or at risk of passing on a genetic disease or abnormality.

The VLRC has recommended that the law be clarified so that the commissioning parent/s are the ones who have to meet the eligibility guidelines for ART services rather than the surrogate and her partner.

Surrogates and their partners will still face eligibility criteria but infertility will not be one of them.

Instead, the VLRC has recommended that surrogates must be assessed by an obstetrician specialising in ART as physically able to carry a child, be assessed by a counsellor or psychologist as being psychologically able to carry and relinquish a child, have already given birth, and be advised and counselled about the personal, legal and social implications of their decision.

The commissioning person or couple must also be assessed as "fit and proper" people to raise a child born through surrogacy and receive counselling and advice about the personal, legal and social implications of the surrogacy arrangement.

Other safeguards to protect the wellbeing of children include a presumption against treatment if anyone involved in the surrogacy arrangement has been convicted of serious sexual or violent offences or has had a child protection order made against him/her. Clinics wanting to treat people who come under this category must first receive approval from the Infertility Treatment Authority.

Any doctor or counsellor who believes that a child to be born from ART may be at risk of any form of abuse or neglect from any of the people involved in the surrogacy arrangement must refer the decision about treatment to a clinical ethics committee. If the committee decides not to treat the people, its decision may be reviewed by the Infertility Treatment Authority.

This is in line with the other position papers the VLRC has produced which have placed the interests and wellbeing of the children to be born from an ART process at the forefront of decision making.

The VLRC has recommended that marital status and sexuality no longer be relevant criteria for who can access ART services, opening the way for single people and male same-sex couples to enter surrogacy agreements.

Under the Status of Children Act, the surrogate mother and her partner (if any) are recognised as the parents of a child born under a surrogacy arrangement. The only way commissioning couples may have their parenting role recognised is under a Family Court parenting order (which expires when the child turns 18) or by adopting the child, which is only possible if the surrogate is related to one of the commissioning couple.

The VLRC has recommended that the commissioning person or couple be permitted to adopt a child who is born under a surrogacy arrangement, but only after the birth of the child and only if the surrogate mother agrees. This means the surrogate would be considered the mother of the child until the adoption order is made.

The adoption process would involve the following conditions:

If a surrogate mother changes her mind about relinquishing the child after the birth, the VLRC believes she should continue to be recognised as the child’s mother. This requirement recognises the pain women have experienced in the past on giving up a child because of pressure from other people.

While altruistic surrogacy is characterised by the absence of payments, the VLRC believes that payments for medical and associated expenses for the surrogate mother are acceptable. However, it has recommended that no payment for loss of earnings should be allowed.

Submissions to the paper were due at the beginning of January and researchers are now undertaking further work on the recommendations in preparation for the final report which is due to be given to the government this year.