A few years ago, my wife suggested that we get a pet dog for the kids. The arguments were assembled: it is good for children to learn how to treat animals properly, it will get them outdoors and off the computer, they will get exercise by taking it around the block etc.
By the time we got the cute little thing air freighted to Sydney from the breeding kennel interstate, we had signed for it three times. Once when placing the order for the dog, once when booking it to be sent to Sydney and one more time when I picked it up at the airport. No signature, no puppy. Not once, but three times.
And the point of this story? Well at the moment the Tasmanian Parliament is debating a bill dealing with surrogacy. The bill in its current form permits two men, two women, a single man and even a heterosexual couple to enter into a surrogacy arrangement with a female person, to be known as the “birth mother”, who will seek to become pregnant and give birth to a child.
Pursuant to the arrangement, the resultant child is to be treated as the child of a person or persons other than the birth mother. The person or persons are to be known as the “intended parent or parents”. Controversial? Well, it depends on your point of view.
Personally, I think there are a number of serious individual and social issues associated with artificial reproductive technology, including surrogacy, that we are only starting to comprehend and understand. It is only now that we are starting to hear from the young adults, born through artificial reproductive technology in the early 1990s, about how they reconcile and understand themselves having a birth parent, genetic parents and social parents.
The sound of the voices is gradually rising as individuals come forward and tell their story. However, what is surprising is that the proposed arrangements in Tasmania may be made orally or in writing.
Now, call me old-fashioned but if I have to sign three times before I get to take the puppy home, you would think that the so-called “relevant parties” to a surrogacy arrangement would be expected to reduce their proposed reproduction plan to writing. Surely nobody believes that the best way for the “relevant parties” let alone the child-to-be, to have any certainty about the future, is to settle the matter on a handshake and a hug!
One great strength of our federation is that when it comes to law making, states and territories can learn from each other. That does not mean that they have to copy exactly what others are doing. Certainly with respect to the states, they are sovereign legislatures and their elected representatives have broad law making powers.
Having said that, it is usual and I would argue good law making practice, to look at what other jurisdictions have done and set out to enhance and improve on what has been enacted elsewhere. Parliaments by doing this are not surrendering any sovereign rights. They are in fact making things better for their citizens by not repeating mistakes or clarifying matters that are doubtful or ambiguous.
For these reasons I find it baffling that the Tasmanian Parliament is pressing ahead with a surrogacy bill that has holes in it so large, that you could drive a fleet of Mack trucks through them. I say this because if you look at the bill in detail and compare it with similar laws passed in other Australian jurisdictions in recent time, it fails to address a number of critically important issues. Furthermore, with respect to what the bill claims to address, there are gaps and deficiencies.
I make these comments, not as some know-it-all legislator from the mainland, that I am not, but as someone who has looked at the Tasmanian Legislative Council Select Committee on Surrogacy report and other surrogacy acts from around Australia.
On the question of the bill failing to incorporate some key recommendations of the Select Committee, I can make no comment. I presume that the reasons will come out in the parliamentary debates. May I say, and I do so with the greatest of respect to the Honourable Members of the Select Committee who put together the report, it is very brief (just 36 pages excluding the index and appendix) for such a complex issue. Secondly, having only eight recommendations, a number of significant matters are left open or ignored. Why is this so, the report does not say.
In February this year, as part of the public consultation process associated with commenting on the draft surrogacy bill, I raised a number of issues. My letter was sent to The Director, Office of Legislation Development and Review c/o the Department of Justice. My five page letter outlining what I consider 11 significant issues was not even acknowledged. So be it.
However, what is concerning is that the bill, in my view, is fundamentally flawed. So what are some of the issues? I have already mentioned that leaving such a complex and potentially highly emotional arrangement to some oral understanding between the parties is extremely problematic. Leaving such a matter to individual and collective memories seems to be a recipe for disaster.
The bill in its current form prohibits commercial surrogacy arrangements – a position I agree with. However, the bill leaves it wide open for individuals and couples to travel overseas and procure a child via a commercial surrogacy arrangement. The whole integrity of the policy position that rejects the concept of commercial surrogacy is undermined by this key flaw.
The NSW Parliament last year when legislating on surrogacy, incorporated a specific provision that addressed this issue. By specifically doing so, the Parliament fortified the principle of rejecting commercial surrogacy; a principle that underpins the Commonwealth’s Standing Committee of Attorneys-General recommendations, that deal with surrogacy.
Some other Australian jurisdictions provide in their legislation that all prospective surrogate women must have carried at least one previous child to term before being eligible to enter into a pre-conception surrogacy arrangement. Indeed the Select Committee itself made this one of their specific recommendations. The bill is silent on the matter. Why?
The question of the genuine independence of the counselling that the parties will undergo remains unclear. How independent would the counselling be if the counsellor was in some way connected with the practice of the doctor or specialist overseeing the surrogacy procedure? This is obviously a serious matter as the bill places some significance on counselling.
It can be argued that clause 39 of the bill is poorly drafted. The prohibition on advertising is clearly stated in the clause title but, the clause itself does not explicitly deal with the issue. Why would you make such an important piece of legislation for who knows how many children into the future, a lawyers’ picnic.
Given the nature of the matter being considered there is a strong argument that the Supreme Court should be the appropriate court to deal with the making of parentage orders with respect to surrogacy arrangements. The bill provides that the Magistrates Court (Children’s Division) will deal with parentage order applications.
The bill is also deficient in not providing conscientious objection rights to medical, nursing and allied health employees who do not wish to work in the area of surrogacy. Why should individuals who conscientiously object to medical practices like surrogacy be potentially forced to work in such areas? Have we as a society become so intolerant that we are prepared to steam-roll over an individual, notwithstanding their deeply held personal convictions?
I could go on with a number of other matters. They are all there for anybody who wishes to examine the bill. As an outsider looking in, it is a mystery why such an important bill falls so short of the mark. The parliamentary debates will hopefully shed some light on these matters. I also hope, particularly for the future children in Tasmania who are going to be born via surrogacy arrangements, that their dignity and human rights are accorded the respect that they deserve and are not subverted by the claims and wishes of adults.
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