Rocco Perrotta: New surrogacy laws must protect kids and mothers

IN March the Commonwealth Parliament announced an inquiry into the surrogacy landscape in Australia. But what will this mean for prospective parents?

HEADSHOT OF THE New LSSA - Law Society of South Australia President, Rocco Perrotta

IN March the Commonwealth Parliament announced an inquiry into the surrogacy landscape in Australia. This will include an examination of the laws of each state and the ACT (Northern Territory does not have surrogacy laws).

The announcement of the inquiry did not stop the SA Government from pressing on with amending our laws to better regulate surrogacy arrangements, and also to make it easier for parties to access surrogacy. The amendments became law last month without fanfare, reflecting the community’s acceptance of surrogacy as an alternative to adoption.

Nevertheless, challenges remain in writing a law to protect the child and adult parties to the surrogacy in every potential scenario. Baby Gammy should serve as a constant reminder of how things can go wrong.

The inquiry by the Commonwealth will focus on some of the more contentious aspects of surrogacy and its regulation. In no particular order, the first will be whether Australia should have uniform surrogacy laws. Inevitably the answer will be yes. That is the easy part.

The greater challenge will be in achieving uniformity between eight states and territories. The lack of uniformity makes it difficult for the parties to a surrogacy arrangement to comply with the legal requirements when they are not from the same state.

The second aspect is whether commercial surrogacy (that is, when the surrogate mother is paid) within Australia should be legalised. All jurisdictions prohibit commercial surrogacy because it tends to give the appearance that the child and the surrogate mother are commodities. There is also a great risk of exploitation of the vulnerable.

Interestingly, commercial surrogacy arrangements outside Australia are permitted. In fact, the recent amendments to the SA laws provide greater regulation of overseas surrogacy arrangements.

Somewhat paradoxically, however, the growing trade of overseas commercial surrogacies, attended with all the risks associated with entering into an agreement with a person who is beyond the reach of Australian law, has led to a call for commercial surrogacies within Australia to be legalised.

It is felt that the obvious difficulty in finding someone in Australia who would be prepared to be a surrogate for no monetary reward is driving people overseas into a largely unregulated and unprotected market.

The third aspect is that only married or de facto heterosexual couples may parent a child through a surrogacy arrangement. Single people are also excluded. I expect that if marriage equality becomes legally recognised then the same equality will extend to parenting through surrogacy and also adoption.

As for single people, if the surrogacy law is equated to the adoption law, it will be open for singles to parent a surrogate child.

As with all areas of the law, the Law Society is more than willing to work with the Government and other parties to advise on appropriate surrogacy legislation to achieve national uniformity, to make surrogacy more accessible and, critically, to protect the rights of all parties, especially the children and surrogate mothers.

Rocco Perrotta is president of the SA Law Society.