Submission on the Review of the Surrogacy Act 2008

Transcription

1 Submission on the Review of the Surrogacy Act 2008 To: Project Officer Surrogacy Review Reproductive Technology Unit Office of the Chief Medical Officer Department of Health 189 Royal Street PERTH WA From: Mr Peter Abetz MLA, Member for Southern River Mr Frank Alban MLA, Member for Swan Hills Dr Graham Jacobs MLA, Member for Eyre Hon Nick Goiran MLC, Member for the South Metropolitan Region Contact: Hon Nick Goiran MLC Suite 2,714 Ranford Road SOUTHERN RIVER WA 6110 Ph: (08) Fax: (08)

2 1. A child s need for a mum and a dad The Surrogacy Act 2008 currently allows both single women and women in a same sex de facto relationship to enter into a surrogacy arrangement and to be the subject of a parentage order for a child born as a result of a surrogacy arrangement. Other submitters to this review are likely to argue that the Act should be amended to allow single men, and men in a same sex de facto relationship, to enter into a surrogacy arrangement and to be the subject of a parentage order for a child born as a result of a surrogacy arrangement. During debate on the Surrogacy Bill 2008 amendments were moved in each House that were designed to ensure that only an opposite sex couple - a mum and a dad could be made the parents of a child born as a result of a surrogacy arrangement. It is worth noting that a majority of Liberal MPs in each House supported these amendments (19 out of 24 MLAs 1 and 8 out of 12 MLCs 2 ). Unlike adoption or fostering, which deal with a child already in existence but in need of care that his or her birth parents are unwilling or unable to offer, surrogacy involves bringing a child deliberately into existence with a plan that the child be handed over by the birth parents to another person or persons to parent. The Surrogacy Act 2008 already contains measures designed to ensure that surrogacy agreements and the resulting parentage orders are made in the best interests of the child. There is a substantial amount of research evidence that confirms the common sense understanding that, all other things being equal, children do best when they are raised by a mum and a dad who are in a committed relationship to each other. Mothers and fathers complement each other in important ways. A review of the body of evidence supporting this proposition is set out W. Bradford Wilcox in his very helpful article Reconcilable Differences: What Social Sciences Show about the Complementarity of the Sexes & Parenting 3. In regard to the role of mothers the evidence indicates that: only mothers can breastfeed which gives the child important health benefits with lifelong consequences; 1 Hansard, Legislative Assembly, Tuesday 2 December 2008, p S1% %20All.pdf 2 Hansard, Legislative Council, Thursday 27 November 2008, p S1% %20All.pdf 3 W. Bradford Wilcox, Reconcilable Differences: What Social Sciences Show About the Complementarity of the Sexes & Parenting, Touchstone, November 2005, Available online at: Forum/conversations/topics/26177

3 mothers have a distinctive ability to understand infants and children and excel in interpreting their children s physical and linguistic cues; and mothers are better able than fathers to distinguish between a cry of hunger and a cry of pain from their baby; and mothers are better than fathers at detecting the emotions of their children by looking at their faces, postures, and gestures. In regard to fathers the evidence indicates that: compared to mothers, fathers are more likely to encourage their children to take up difficult tasks, to seek out novel experiences, and to endure pain and hardship without yielding; fathers are more likely than mothers to encourage toddlers to engage in novel activities, to interact with strangers, and to be independent; and as children enter adolescence, fathers are more likely to introduce children to the worlds of work, sport, and civil society. Additionally, other research indicates adverse oucomes for both girls and boys raised without a biological father that: Girls whose fathers left the family early (before age 5) were five times more likely in the US and three times more likely in New Zealand to become pregnant as a teenager compared to girls from traditional families. 4 Male adolescents in all types of families without a biological father (mother only, mother and stepfather, and other) were more likely to be incarcerated than teens from two-parent homes. Youths who had never lived with their father had the highest odds of being arrested. 5 Deliberately depriving a child of having a father in his or her life would deny a child the positive benefits and protective effects of fathering. The Surrogacy Act 2008 ought to be amended to ensure that only opposite sex couples can enter into a surrogacy arrangement and be the subject of a parentage order for a child born as a result of a surrogacy arrangement. This would ensure that all children born as a result of a surrogacy arrangement have the opportunity to be raised by both a mother and a father who are in a committed relationship together. 4 Ellis, B., Bates, J., Dodge, K, Fergusson, D., Horwood, L.J., Pettit, G. & Woodward, L., Does father absence place daughters at special risk for early sexual activity and teenage pregnancy? Child Development, 2003, Vol 74, Harper, C., & McLanahan, S., Father absence and youth incarceration, (Center for Research on Child Wellbeing) 2003, Working Paper

4 2. A child s need for a stable relationship Unlike the Adoption Act 1994, the Surrogacy Act 2008 currently has no requirement for the relationship of an eligible couple seeking to be arranged parents to be of any duration. As the Act stands a couple who have just married or just entered into a de facto relationship with each other could immediately seek to enter into a surrogacy arrangement. This is undesirable. The difficulties of surrogacy are complex enough without permitting it for couples who have just begun a relationship together. There is no obvious reason not to require the same duration of relationship as required for prospective adoptive parents namely at least 3 years 6. Note: Recommendation 1 addresses the points raised in both section 1 and 2 above. Recommendation 1: Section 19 of the Surrogacy Act 2008 should be amended as follows: (1) Delete section 19(1)(b) and insert: (b) when the surrogacy arrangement was entered into, or after that time but before the application is made, the arranged parents are an eligible couple. (2) Delete section 19(2) and insert: (2) In subsection (1)(b) eligible couple means 2 people of the opposite sexes who are married to, or in a de facto relationship with, each other and who, (a) have been married to or in a de facto relationship with each other for at least 3 years; and (b) as a couple (i) are unable to conceive a child due to medical reasons; or (ii) although able to conceive a child, would be likely to conceive a child affected by a genetic abnormality or a disease; or (iii) although able to conceive a child are unable, for medical reasons relating to the woman in the couple, to give birth to a child. (3) In section 19(3) delete definitions of eligible couple and eligible person and insert: definition of eligible couple 6 Adoption Act 1994, Section 39 (1) (e)

5 3. Extraterritorial operation Since the passage of the Surrogacy Act 2008, similar laws passed in Queensland 7 and New South Wales 8 have incorporated an explicit provision to ensure that it is an offence for a person ordinarily resident in the respective state to enter into a commercial surrogacy arrangement even if all the relevant acts take place outside the State. A similar provision is in place in the Australian Capital Territory 9. This is an important provision given the known practice of seeking surrogate mothers in countries such as India where they are subject to exploitation. A January 2012 article by Ishika Arora in Prospect the journal of international affairs from the University of California, San Diego, entitled Wombs for rent: outsourcing surrogacy to India, helpfully outlines some of the issues involved. 10 Indian women are paid about $7000 to act as surrogate mothers. The standard contract does not give the surrogate mother any rights over the child after it is delivered. It is essentially an enforceable commercial contract. Up to five embryos are routinely implanted in surrogacy procedures to maximise the chance of pregnancy despite this being contrary to IVF best practice which limits embryo transfers to two at a time because of the dangers both to women and to children from possible multiple births. Many surrogate mothers are illiterate and unable to understand the risks of these procedures even when they are specified. Lower class women in India tend to live in joint families for both social and economic purposes. In such housing situations, the woman can be subjugated by her husband and mother-in-law, the matriarch of the household, who force her into a surrogacy contract in order to maintain the family s financial stability. In May 2012 a 30-year-old surrogate mother died at an Ahmedabad hospital while carrying a child for an American couple. The woman, Premila Vaghela, was eight-month pregnant and is survived by two children. The medical director of a surrogacy clinic in Anand, Dr Nayana Patel is reported to have said, At present, the contracts signed between the surrogate mother and the couple (whose baby she is carrying) does not talk of any compensation in case of death of the surrogate mother. Those who agree to become surrogates are told well in advance about the complications involved in pregnancy. 11 It would clearly be appropriate for the Western Australian Surrogacy Act 2008 to have a provision ensuring that persons ordinarily resident in Western Australia cannot engage in conduct overseas in relation to a commercial surrogacy arrangement that is illegal here in Western Australia and in many cases would involve the exploitation of women. Recommendation 2 The Surrogacy Act 2008 should be amended by inserting a new Section 5A as follows: 5A. Application of Part outside Western Australia 7 Surrogacy Act 2010 [Qld], Section 54 8 Surrogacy Act 2010 [NSW], Section 11 9 Parentage Act 2004 [ACT], Section Avinash Nair Govt mouthpiece bats for surrogacy tourism, Express India, 21 May 2012,

6 4. Parentage testing This Part applies to and in respect of conduct engaged in outside Western Australia by a person who is ordinarily resident in Western Australia at the time the conduct is engaged in. It was observed by Mr Peter Abetz during the Legislative Assembly debate on the Surrogacy Amendment Bill 2008 that up to twenty per cent of children allegedly conceived pursuant to a surrogacy arrangement were in fact the natural children of the surrogate mother and her husband or de facto male partner. 12 The obvious potential for heartbreak and tragic complications that could follow if this were discovered after a parentage order has been made could easily be avoided by making parentage testing a required element for the approval of a surrogacy arrangement and the making of a parentage order. As well as the psychogical and social aspects, the child has a fundamental right to accurate information on his or her genetic parentage, not least because of the implications for having a complete medical history. Recommendation 3 The Surrogacy Act 2008 should be amended as follows: (1) In section 14 insert in alphabetical order: parentage testing procedure has the meaning given in the Family Court Act 1997 section 5(1). (2) After section 17(d) insert: (ea) the Council is satisfied that the birth mother and her husband or de facto partner have agreed to give consent for the child to undergo a parentage testing procedure following the child s birth; and (3) After section 20(5) insert: (6) Before the court considers the application, a certified copy of the results of a parentage testing procedure undertaken to determine the parentage of the child must have been lodged with the court. (4) After paragraph 21 (2) (f) insert: (ga) the child is not the genetic child of the birth mother and her husband or de facto partner; and (5) Delete section 21 (5) and insert: 12 Hansard, Legislative Assembly, Tuesday 2 December 2008, p S1% %20All.pdf

7 5. Surrogacy arrangements unenforceable (5) For the purposes of subsection (2)(ga), a child is the genetic child of the birth mother and her husband or de facto partner if the child was conceived from the egg of the birth mother and the sperm of the birth mother s husband or de facto partner. Section 7(1) of the Act wisely enunciates the public policy position that surrogacy arrangements are unenforceable. A surrogacy arrangement is not a contract for one party to produce and hand over a child to another party. However, it seems that during the passage of the Surrogacy Bill 2008 this clear public policy position got muddied by other understandings of surrogacy that treat it as an enforceable contract where the birth mother is considered to be merely a living incubator. This view demeans the inherent dignity of women and their capacity for motherhood. For example section 13(2) of the Act provides that For the purposes of this Act it is presumed to be in the best interests of the child for the arranged parents to be the parents of the child, unless there is evidence to the contrary. This presumption is unwarranted. There is scientific evidence that during pregnancy and child birth the unborn child and his or her mother form a strong mutual bond which is based on human biochemistry and other deeply rooted biological factors. Oxytocin levels in a pregnant woman have been shown to predict her bonding behaviour with the child after birth. Oxytocin levels at early pregnancy and the postpartum period were related to a clearly defined set of maternal bonding behaviors, including gaze, vocalizations, positive affect, and affectionate touch; to attachment-related thoughts; and to frequent checking of the infant. 13 At birth, the baby s physiology is fully functional to sustain life, but needs nurturing and protection. So that, from the moment of birth the infant is stormed with sensations and is programmed to learn from constant repetitions. The sensations that the baby receives while being nurtured and kept safe, provide the stimuli that triggers the Bonding Process. The experiences of touch (mouth while feeding, massage, skin-to-skin), sight (mother s face), and sound (mother s voice), all become imprinted in the brain, and stimulate the pleasure pathways and release endorphins. It is now understood that the hormone oxytocin, produced after delivery and during lactation, plays a vital 13 Ruth Feldman et al., Evidence for a neuroendocrinological foundation of human affiliation : plasma oxytocin levels across pregnancy and the postpartum period predict mother-infant bonding, Psychological Science, 2007, 18:

8 part in initiating and sustaining the neurological bonding process in the baby, and in influencing the mother s specific bonding behaviours with the baby. 14 Removing a child from the birth mother is not self-evidently in the best interests of the child. This legal presumption is a legal fiction without foundation in scientific fact. Abolishing this provision would allow a court to consider all relevant matters, including the natural bond between a child and its birth mother, in determining child s best interests. Similarly provisions allowing the court to dispense with consent from the birth parents are not compatible with the public policy position that a surrogacy arrangement is unenforceable. Recommendation 4 The Surrogacy Act 2008 should be amended as follows: (1) Section 13 (2) should be deleted [Note: This section provides that For the purposes of this Act it is presumed to be in the best interests of the child for the arranged parents to be the parents of the child, unless there is evidence to the contrary.] (2) In section 21(3) delete In the circumstances identified in subsection (4) or if and insert: If (3) Delete section 21(4). 6. Rights of the birth parents: comparison with the Adoption Act 1994 There is a clear discrepancy between how birth parents are treated under the Surrogacy Act 2008 and the provisions of the Adoption Act Under the Adoption Act 1994 the consent of the birth parents to the adoption can only be dispensed with in extraordinary circumstances. Additionally a cooling off or revocation period of twenty eight days is required after consent is given before an adoption order can be finalised. Under the Surrogacy Act 2008 the consent of birth parents can be readily dispensed with under very broad circumstances and there is no opportunity to revoke consent before the finalisation of a parentage order. 14 Arturo Giustardi et al., Mother infant relationship and bonding myths and facts, Journal of Maternal- Fetal and Neonatal Medicine, 2011; 24: 59-60

9 Given that the provisions in the Adoption Act 1994 reflect the sensibilities the community has developed toward relinquishing mothers based on long experience with adoption it would seem more prudent to follow the same approach to relinquishing mothers involved in a surrogacy arrangement rather than assume, in effect, that these women are mere incubators whose consent and feelings can be ignored. The Surrogacy Act 2008 should be amended so that the rights given to birth parents under that Act mirror those given to birth parents under the Adoption Act Recommendation 5: The Surrogacy Act 2008 should be amended as follows: In section 21(2): (a) delete paragraph (d) and insert: (d) except to the extent that subsection (3) authorises the court to dispense with the requirement for a birth parent s consent (i) the birth parents have, no sooner than 28 days after the birth of the child, freely consented to the making of the order; and (ii) a period of at least 28 days has elapsed since the consent was given and the consent has not been withdrawn; and (Recommendation 4 (2) and (3) above are also pertinent). 7. Certainty in the law: Transitional provision Notwithstanding Recommendation 1 above, it is important to ensure that persons who, in accordance with the current Act, have already obained approval from the Western Australian Reproductive Technology Council, remain eligible to be the subject of a parentage order for a child born as a result of a surrogacy arrangement. Recommendation 6 If Recommendation 1 is adopted then a further amendment to the Surrogacy Act 2008 should be made as follows: Insert new section 22A as follows: 22A. Transitional provision (1) In this section commencement day means the day on which the [relevant section of the amending Act] comes into operation;

10 previous circumstances means the circumstances for seeking a parentage order described in section 19 of the Act as in force immediately before commencement day. (2) For the purposes of sections 20(1) and 21(2)(a), the previous circumstances apply in respect of an application for a parentage order if the child was born under a surrogacy arrangement that was approved by the Council before commencement day.