Statute Amendment (Surrogacy) Bill

30 Sep 2006 archivespeech

This speech is in relation to the Statute Amendment (Surrogacy) Bill. The Hon. J.M.A. LENSINK expresses that she hopes that if the bill is referred to the Social Development Committee it will be examined in a proper and fulsome way and that any alarmist concerns that people in the community might have will be allayed.

The Hon. J.M.A. LENSINK: I also commend you, Mr Acting President, on your role in drafting this bill and addressing a concern that applies to some couples in South Australia who would dearly like to have children and who are able to conceive but, for some reason or other, the female of the partnership is unable to carry the foetus to full term or without miscarriage. I appreciate that the parameters have been cast to include certain conditions—those that have been raised, no doubt, by the constituents who have met with you—and include that the person who is to carry the child as the surrogate mother must be in some way related to one or other member of the couple.

There are problems for the genetic parents of a child once the child has been born through surrogacy in this state as it applies to people who have undergone the procedure in another jurisdiction, as has been outlined in previous speeches in relation to new section 10HB (applications to the Youth Court), and I will not go through those again. But I do note that the application process states that the welfare of the child is paramount and there is also a provision that no dollars, apart from legitimate costs of the pregnancy, may change hands between couples.

I have received some correspondence from opponents of the bill which I would like to touch on, where people have stated that children will be treated as a commodity and that this is somehow exploitation of women. I think that the bill should not be cast in those terms in any way, so as to recognise that couples might, in an altruistic way, wish to support a childless couple to have children. Clearly, the parents who want the child would dearly like to have the child. I also find the argument that is raised by some groups, that somehow there ought to be some alternative by decreasing the abortion rate, is almost a mathematical equation; that somehow the lack of fertility in Australia should be addressed through the abortion rate, which I do not think is helpful in this day and age.

I received some correspondence from the Southern Cross Bioethics Institute which raised a number of hypothetical issues. In particular, it talked about the ambiguity of particular relationships between the various couples and the child, in comparison to what we now know. It used some fairly alarmist language, I have to say. I will quote a couple of sections of it; for instance, ‘Basically, this is an experiment with the lives of all involved,’ and, ‘Surrogacy arrangements downplay the importance of gestation to the physical and psychological bond between mother and child. Surrogacy ruptures the bond.’

I think that is not just alarmist but quite offensive. If we consider the situation in the past, when adoptions might have first taken place, I am not quite sure what that says about the adoption of children and the relationship between the birth mother and the new parents. I pose a question to the people who raised that issue: what about the gestational bond of a baby born with foetal alcohol syndrome? Is the Bioethics Institute suggesting that the maternal grandparents of a child with foetal alcohol syndrome should take on the parenting role in that situation? If they would like to get further information perhaps they should meet with a group known to many of us where grandparents are looking after their grandchildren while the parents of that child are suffering drug abuse or mental health problems.

Undoubtedly, we are going into what are uncharted waters in South Australia but I think we should not shy away from these things. These questions will arise from time to time and we ought to have the gumption to address them, rather than saying, ‘We haven’t done that before, therefore, we should be afraid of all the potential ethical ambiguities that might be raised.’We already have the example of the ACT moving on this issue, so we can learn a great deal from what is taking place in that jurisdiction. Indeed, parents in this state are already availing themselves of services available in the ACT.

There are difficulties which are being encountered by genetic parents of children. I would like to quote a few items. Kerry Faggotter has written to members and was on ABC Radio this week. She was asked by Matthew Abraham: It’s actually illegal to have another woman carry your child to full term?

Kerry replies: It’s not illegal for them to do that. It’s illegal for a fertility centre to be a part of that.

She says: We just went through an extensive program where we put in an application fee to apply to the surrogacy board in Canberra, which is run by an ethics committee.We put forward our case as to how we are infertile, as well as my cousin’s history. We all underwent counselling, psychiatric reviews.

Deb Tribe then asks her: So what have been the legal ramifications for you not being on the birth certificate?

Kerry says: There’s been many. My first problem. . .and she goes on to explain how she had enrolled Ethan, her son, in swimming classes, and all the difficulties associated with that. Further, I understand, from correspondence from another potential couple, that the genetic mother may not actually be able to adopt the child. Kerry has also raised the issue in her letter to members. She says: Although my husband is registered on the birth certificate of our son, if he was to die, I as Ethan’s mother have no legal entitlement to him as the law stands today. These restrictions also prohibit me from enrolling him at schools, opening a bank account and obtaining a passport for him. The list is endless. My husband is the only one besides the surrogate, my cousin Yasmin, who can do all of the above as the law stands now.

These couples who are seeking access to such a service obviously really want to have a child. I would have no hesitation in appreciating that they would be good parents. However, that is not a judgment that we ought to be making in any case. But, in terms of low fertility, why would parliaments continue to resist reducing barriers to willing parents to have a child that they want?

My liberal principles tell me that it is not for parliaments to regulate people’s personal arrangements, so I do hope that if this bill is referred to the Social Development Committee it will be examined in a proper and fulsome way and that any alarmist concerns that people in the community might have will be allayed.