Australia’s legal and non-legal measures are effective to a certain extent, as they accommodate the various changes in society regarding surrogacy and birth technologies. Legal responses involving legislation have reformed in order to effectively respond to demands for surrogacy and birth technologies. However, certain legal responses regarding surrogacy and birth technologies remain limited in enforceability and scarce in explicitly distinguishing the custody of the child between the surrogate and commissioning parents. Non-legal responses involve lobby groups, non-governmental organisations and the media. These responses aim to influence the government’s decisions involving surrogacy and birth technologies, by raising awareness to changes in family arrangements within society and pressuring governments to respond effectively.
Effective legal responses in surrogacy
Australia’s legal responses to the contemporary issues of surrogacy have been effective to a certain extent, as they accommodate the changes within society. This is evident in certain legislations that have been established or reformed to adapt to changing societal values and contemporary family structures. The NSW Parliament intended to establish the Surrogacy Act 2010 NSW legislation that clearly outlined the legal rights and responsibilities of commissioning and birth parents. The Surrogacy Act 2010 NSW is an effective law reform as it allows the full transferral of parentage status from the birth mother to the commissioning parents, when they apply to the NSW Supreme Court. This is effective in recognising the different circumstances that prevent parents from conceiving children, and avoids them going through long adoption processes. The legislation therefore, is effective in its responsiveness to the communities needs by providing access to surrogacy for different family structures, in response to changing values of society (REAPHARM). Prior to this legislation, the commissioning parents were not recognised as the legal parents of the child and were limited to certain government benefits. With this legal response to surrogacy, commissioning parents can now apply for parentage order between 30 days, 6 months after the baby is born. In addition, the law reform prohibits commercial surrogacy, which is a monetary amount given to the surrogate, only permitting altruistic surrogacy.
Ineffective legal responses in surrogacy
On the other hand, The Surrogacy Act 2010 NSW enforces the individual rights stated in the Convention on the Rights of the Child (CROC), by banning commercial surrogacy, as it is considered a form of selling children. However, the legislation does not administer commercial surrogacy by Australian citizens overseas. Due to its limited jurisdiction, the law cannot be enforced overseas, which allows exploitation. This problem is evident in the ‘Baby Gammy 2014’ case, where the surrogate mother gave birth to twins. One of the twins had down syndrome, and was rejected by the commissioning parents. They returned to Australia leaving baby Gammy with his surrogate mother in Thailand, and instead took his twin sister. The Australian couple were not punished for their discrimination against the child. When considering this aspect of Australia’s legal response, it is ineffective in carefully enforcing its laws overseas (REAPHARM)
However, there are alternating views on the issue of commercial surrogacy, as represented by the media. The media rose awareness to the case of “When altruistic surrogacy goes wrong.” Diane was a surrogate mother offering to help a carry a child, and addressed the ineffectiveness of the legal responses in protecting her rights. A financial disagreement between the commissioning couple and Diane, lead to her belief that surrogates are not protected by altruistic surrogacy and should be paid to account for the expenses during pregnancy. Therefore, the legal response regarding commercial surrogacy is effective to a certain extent, as the Surrogacy Act 2010 NSW acknowledges different family structures and treats them equally, but lacks jurisdiction overseas and thus cannot be enforced when commissioning couples return to Australia.
Effective non-legal responses in surrogacy
Australia’s non-legal responses to surrogacy involve non-government organisations, the media and lobby groups, most of which have been effective in protecting the rights of families who want surrogacy. Lobby groups such as Surrogacy Australia aims to promote and improve the practice of surrogacy by educating and advocating it. The lobby group acknowledges homosexual couples and heterosexual couples that are unable to conceive children by protecting their individual right to surrogacy (REAPHARM). Surrogacy Australia is a non-for-profit lobby group aiming to support Australians who are planning on or are involved in surrogacy. It achieves this by working with politicians to educare and lobby for new laws to be made to protect surrogates, commissioning parents and children. The lobby group works with academics in providing new research into improving outcomes of surrogacy, and the media in educating the public on the process. An example of their lobbies involve the campaign for Medicare reform, as Australia’s medicare does not give rebates for IVF in surrogacy because it doesn’t involve the individual who cannot reproduce. This pressurises couples to pay $12 000 – $18 000, thus limiting their accessibility to IVF. The media (ABC) published an article, ‘The surrogacy trap: why our laws need new life’ stating that Australians are willing to go through great lengths to bend the laws, if it means they can have children. The media is effective in allowing society to express their views and concerns on surrogacy, thus pressurizing the government. Therefore, the media is an effective non-legal response as it highlights the lack of acknowledgement of changing morals in society involving surrogacy. Non-governmental organisations (NGOs) such as Families Through Surrogacy, and lobby groups like Surrogacy Australia effectively provides advice and support to couples involved in surrogacy, by running conferences and seminars centred around bringing couples together that are interested in surrogacy.
Ineffective non-legal responses in surrogacy
On the other hand, Australia’s non-legal responses can be ineffective due to its lack of enforceability, as opposed to legal measures. Although they have the power to pressurize the government, they do not have the ability to legally make or change laws, hence being ineffective in legal matters involving surrogacy. This is evident in the media headlines that raise awareness to issues surrounding surrogacy, however they cannot do anything legally enforcing. Therefore, non-legal measures involving Surrogacy Australia, the media (ABC) and Families Through Surrogacy have been effective in advocating for individual rights, raising awareness to issues surrounding surrogacy and pressuring the government to effectively respond to society’s needs.
Effective legal responses in birth technologies
Legal responses to the contemporary issues arising from birth technologies involve legislation that have effective to a certain extent in accommodating the contemporary issues in society involving birth technologies. Birth technologies allow the application of clinical technology to the human sperm and embryo, for reproduction. Assisted Reproductive Technology Act 2007 (ART 2007 Act) is an effective piece of legislation as it administers the social and ethical aspects of reproductive technology involving surrogacy, In-vitro Fertilisation (IVF) and artificial insemination. The ART 2007 Act is effective as it prevents commercial surrogacy, thus stopping exploitation and unfair treatment. In addition, the ART is effective in protecting and enforcing individual rights (REAPHARM). Thus the ART 2007 Act effectively responded to the communities needs and expectations. Issues surrounding the legal definition of a parent have arised due to the introduction of IVF. This has been clarified by the Status of Children Act 1996 (NSW) stating that a woman pregnant by a donor sperm not from her husband, than the man is not the father. In relation to the case of B v J (1996), the father refused to pay maintenance, as the child isn’t biologically his. The court rejected his argument due to the ‘presumption of paternity’. The Status of Children Act 1996 (NSW) legislation that upholds and enforces a child’s individual right to equality and care (REAPHARM), regardless of being born from birth technologies. This enforces the article in CROC stating, “parties shall respect and ensure the rights of each child irrespective of the child’s birth.” The effectiveness of this legislation in NSW is reflected in a media article by Sydney Morning Herald, “discrimination associated with birthing technologies does not exist.” Therefore, Australia’s legal responses to birth technologies involve the ART 2007 Act, the Adoption Act 2007 and the Status of Children Act 1996 which have been effective in responding to the changing needs of society, and upholding the individual rights to birth technologies.
Effective non-legal responses in birth technologies
Australia’s non-legal responses involve lobby groups such as Fertility Society of Australia (FSA) which aims to improve the quality of fertility service to all individual’s and helping the government develop strategies relating to birth technologies. FSA conducts annual scientific meetings to discuss improvements to reproductive technologies and treatments.