Essay Surrogacy & Birth Technologies

Resource Description

Evaluate the effectiveness of the law in achieving justice for all parties involved in relationship breakdowns

INTRO: The desire to be a parent is one that is felt by people of all backgrounds, genders and cultures, and particularly the desire to be a biological parent. As society evolves, so too does the longstanding definition of what makes a family and how a family is formed. Unfortunately, there are many circumstances that can hinder a person’s ability to fulfil this desire. At present, advances in modern science and Assisted Reproductive Technologies (ART) means that surrogacy is becoming an increasingly widespread means of family formation for those who wish to have children. However, in Australia, inadequacies in convoluted surrogacy legislation and the availability of information on surrogacy means that many Australia’s seek surrogacy arrangements overseas. This is because there are very limited circumstances in which a surrogate mother is available for altruistic reasons. Under Article 23 of the ICCPR: “The family is the natural and fundamental unit group of society and is entitled to protection by society and the sate.” Thus, the issue of inaccessibility discriminates severely against people who simply cannot found a family otherwise. As a result the implications of Australian’s seeking international surrogacy often prove to be a gross violation of rights for all parties involved.

AUSTRALIA INEFFECTIVENESS: The present defining scope of The Surrogacy Act 2010 (NSW) confines the extent to which surrogate parents are accessible, under Section 9 as follows “It is a commercial surrogacy arrangement if it involves the provision of a fee, reward of other material benefit…However, it is not a commercial surrogacy arrangement if the only fee, reward or other material benefit provided is for the reimbursement of a birth mothers surrogacy costs.” Not only is there very limited accessibility in finding an altruistic surrogate, but there are often immense difficulties in distinguishing what constitutes a reimbursement and a material benefit, particularly as the hardship of pregnancy cannot be monetarily summed. This is in addition to cases such as Re Evelyn (1998) which discourage domestic surrogacy due to the inconsistencies of legal parentage rights. At present, The Family Law Act 1975 (Cth) does not appropriately recognise parentage of children born as a result of surrogacy where state and territory acts do not apply. Thus, Re Evelyn (1998) is an example where the lack of enforcement mechanisms and binding legislation could not determine the rights between biological and commissioning parents, despite S60HB of the FLA 1975 which recognises orders of state and territory courts that transfer the legal parentage of children who are born as a result of surrogacy arrangements for the purposes of legal proceedings under the FLA.