Surrogacy laws under review in Victoria

The Victorian Law Reform Commission has released recommendations suggesting how the state's 'confusing and contradictory state laws about altruistic surrogacy' can be clarified. The Commission, an independent statutory authority that reports to the state government on options for law reform in Australia's second largest state, is currently enquiring and reporting on the desirability and practicability of making changes to the Infertility Treatment Act 1995 and the Adoption Act 1984; and making recommendations for any amendments which should be made to any other relevant Victorian legislation.

In August 2005, the Commission published a position paper reviewing the law that regulates access to assisted reproductive technologies (ARTs) and the legal parentage of children born through ART. The new recommendations on surrogacy are contained in the Commission's third position paper, which was published last week. This is the last in a series of three papers which give the public a chance to comment on interim recommendations before a final report is given to the government. The paper calls for submissions from the public and other interested parties by 9 January 2006.

Professor Marcia Neave, chair of the Commission, said that the current law was contradictory because it says that clinics can only treat women who are medically infertile. So, while a woman is not prevented from inseminating herself with the sperm of a man in order to carry a child for someone else, if a couple wanted a surrogate to carry an embryo - created using their own or donated gametes - the law says that the surrogate herself must be infertile. 'It makes no sense to require the surrogate to be infertile before she can receive treatment to carry a child for someone else, which is why we've recommended that surrogate mothers be able to have clinic treatment as long as they are carrying the child for a person who is unlikely to become pregnant, risks passing on a genetic disease or cannot physically carry or give birth to a child', she said.

Another recommendation made by the Commission is that the intended parents should be legally recognised as the parents of the child born to a surrogate, but not automatically. Professor Neave said that it is 'not in the best interests of children for their parents' legal status to be in question, so we've recommended that they be allowed to adopt a child carried by a surrogate mother, provided certain conditions are met'. This includes an agreement from the surrogate that the legal parentage should pass to the intended parents - this, says the Commission, would allow the law to 'protect women against pressure to give up a child conceived as part of a surrogacy arrangement'.

However, Professor Neave noted that the recommendations made by the Commission would only be relevant if altruistic surrogacy was allowed to continue. The Infertility Treatment Act 1995 is silent on altruistic surrogacy but commercial surrogacy is banned. If the government continues to allow altruistic surrogacy then the Commission also recommends that all parties involved in a surrogacy arrangement receive counseling, 'to ensure they understand the consequences of their decision' and including a focus on the importance of telling children about their genetic origins and circumstances of their birth.

Among its other interim recommendations, the Commission states that surrogacy should be available for single people and same-sex couples. It also suggests that if clinicians or counselors fear that a child, if born, would be at risk of abuse or neglect from any of the people involved in the surrogacy arrangement then the decision whether or not to treat should be passed to an ethics committee. If the ethics committee decides not to recommend treatment then the decision can be reviewed by the Infertility Treatment Authority (ITA). However, treatment will be denied to anyone if they have been convicted for serious sexual or violent offences or have had a child protection order made against them. It also suggests that the only payments that should be permitted in surrogacy arrangements are those for the surrogate's medical and associated expenses, and that payment for loss of earnings should not be allowed. Further, it says that the register of donors held by the ITA should be expanded to include information about surrogacy. Other focuses of the position paper include looking at whether a minimum age should be set for women acting as a surrogate and whether surrogates should be prohibited from using their own eggs when entering into an agreement.