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Surrogacy law needs clarification

25 November 2005 

Confusing and contradictory state laws about altruistic surrogacy would be clarified under interim recommendations released today by the Victorian Law Reform Commission.

 “Victorian law does not currently prevent a woman from inseminating herself with a man’s sperm to become pregnant and carry the child for another couple or person,” commission chairperson Professor Neave said.

 “However, if a couple want a surrogate mother to carry an embryo made from their own egg and sperm, or from donated gametes, then the surrogate must be infertile before she can be treated in a clinic.

 “It makes no sense to require the surrogate to be infertile before she can receive treatment to carry a child for someone else, which is why we’ve recommended that surrogate mothers be able to have clinic treatment as long as they are carrying the child for a person who is unlikely to become pregnant, risks passing on a genetic disease or cannot physically carry or give birth to a child.”

 “Our interim recommendations will only be relevant, however, if the government decides to continue to allow altruistic surrogacy. The current law specifically prohibits commercial surrogacy but not altruistic surrogacy.”

 The Position Paper also recommends a process to recognise that the people who intend to bring up the child are the legal parents.

 “It’s not in the best interests of children for their parents’ legal status to be in question, so we’ve recommended that they be allowed to adopt a child carried by a surrogate mother, provided certain conditions are met,” Professor Neave said.

 “The law needs to protect women against pressure to give up a child conceived as part of a surrogacy arrangement. We’ve recommended that the people who intend to care for the child should not be legally recognised as parents unless the surrogate agrees to the child’s parentage being transferred to them.

 “If the government continues to allow altruistic surrogacy the commission recommends that all people involved in surrogacy arrangements receive counselling to ensure they understand the consequences of their decision.

 “Other requirements to protect the welfare of the child, as recommended in Position Paper One: Access should also apply.

 “As well as making interim recommendations, the commission also asks whether there should be a minimum age for being a surrogate mother and whether the law should not recognise surrogacy arrangements which involve surrogate mothers using their own eggs to conceive a child.

 “People have until early next year to get their submission to us on the commission’s interim recommendations. All submissions will be considered before we begin writing the final report for government,” Professor Neave said.