New surrogacy laws in the Northern Territory that allow adults to commission a child claim to be underpinned by the “principle of the paramountcy of the best interests of the child”. Such a claim is clearly incompatible with an enterprise that will certainly involve separating a child from its gestational mother at birth. What the legislation does – but seems reluctant to say – is that it will prioritise the wish of adults to acquire a child, even though this necessarily involves compromising the interests of the child who, of course, has no say in the arrangements made to “commission” their conception. If the child’s interests enter the equation at all, it can only be after the fact.
The Northern Territory Legislative Assembly passed the Surrogacy Act 2022 on 12 May 2022. It is being touted as a “compassionate” law which brings the Territory in line with other states and the ACT in facilitating surrogacy arrangements. Previously, couples wishing to enter into surrogacy arrangements had to move interstate or travel overseas to jurisdictions where the practice is legal and/or available.
As with all jurisdictions in Australia, the law will only allow for “altruistic surrogacy”, where the woman who is commissioned to gestate the baby is compensated only for her expenses. The practice of commercial surrogacy (where a surrogate is paid a commercial fee for her services) will continue to be prohibited under the new law.
The regulatory framework established by the Act requires surrogacy arrangements to be made between a surrogate (the woman giving birth to a baby) and intended or commissioning parents (the couple to whom the child is intended to be given after birth), before any pregnancy takes place.
While these arrangements are necessary for the surrogacy arrangement to be officially recognised, they provide no guarantee to the commissioning parents. As the Explanatory Memorandum sets out, the government cannot require an altruistic surrogate to relinquish the baby if she changes her mind:
“The Bill provides that, except for the recovery of reasonable costs of the surrogate mother associated with a surrogacy arrangement and legal proceedings for a parentage order, a surrogacy arrangement is not legally enforceable. This reflects the policy against the forced relinquishment of a child and the associated commodification of women and children.”
According to the government’s reasoning then, women and children are only commodified where women are coerced to relinquish the child. This completely ignores the reality that the practice of surrogacy inherently commodifies the women and children involved.
The unenforceability of surrogacy agreements means that regardless of any pre-established agreement between the surrogate and the commissioning parents, a woman may decide not to give the baby to the commissioning parents after birth. Conversely, the commissioning parents may decide not to take the baby. The Explanatory Memorandum warns that “persons entering into a surrogacy arrangement need to be prepared to accept the risk of there being no legal remedies, with the exception of the surrogate mother’s reasonable costs”. This means that there is the possibility that the baby, once born, will be wanted by neither party and potentially left parentless; any consideration of the baby’s best interests is manifestly missing.
Despite this evidence to the contrary, the Northern Territory Health Minister, Natasha Fyles, along with numerous of her colleagues, are at pains to emphasise that children born as a result of these arrangements are the priority of the government and the legislation. Ms Fyles states that the bill is an “important, complex” piece of legislation which had been “designed around the best interest of the child.”
These statements, however virtuous sounding, are completely meaningless when it comes to actually protecting children. As author Mirah Riben explains: “in reality the rights of children born through surrogacy are utterly disregarded”:
“What, if any, rights or protection do the children of surrogacy have? Some who hire surrogates do so after being rejected as adopters because of age limits. Others fail or want to avoid a background check, which surrogacy does not require. Unlike adoption, surrogacy requires no home studies. Children can thus be ordered, paid for, and handed over to anyone, including pedophiles or others who may intend to mistreat them.”
Dr Bernadette Tobin, from the Plunkett Ethics Centre, agrees:
“We have to consider whether surrogacy in and of itself wrongs the child brought into existence before we go on to consider two further questions: Do surrogacy arrangements exploit women? Do surrogacy arrangements put children at risk of abandonment?”
As Dr Tobin explains further:
“Surrogacy intentionally violates a child's right to be brought up – if it is possible – by their natural parents. Surrogacy intentionally breaks the gestational link between the child and her natural mother. A deeply ingrained bond is created between mother and child by nine months of sacrifice, love and care. For the first nine months, it is the mother's voice the child hears. Having been intimately connected with her body, the child will always have unique physical and psychological connections with the woman who gave birth to them. For this reason, it is now widely recognised that adopted children have the right to know who their biological parents are, if that is possible.”
The Act allows for a surrogacy arrangement to be entered into between a surrogate and one or two intended parents. Intended parents must be at least 25 years old at the time of entering the agreement, and must be Australian citizens or permanent residents. If there are two intended parents, they must be partners at the time of entering into the arrangement. The Northern Territory law does not require a criminal history check or child protection order check to be undertaken in relation to any of the parties entering into the surrogacy arrangements. Currently, Victoria is the only jurisdiction in Australia that requires such background checks.
To make a parentage order, the Local Court must be satisfied that the surrogacy arrangement was entered into for either a medical reason (e.g. an inability to conceive, carry or bear a child, a risk to the life or health of the child, or a risk to the life or health of the mother) or a non-medical reason. Examples of non-medical reasons provided in the Explanatory Memorandum include “a male same-sex couple or a trans man who is physically able to become pregnant but for whom pregnancy would conflict with their gender identity”.
Measured against the reality, any claim that “the best interests of the child” have been prioritised in the Northern Territory’s new surrogacy law is clearly just empty rhetoric.
Children commissioned in surrogacy are subject to the whims of adults at every point: they are commissioned to satisfy an adult’s wish to acquire a child; they are gestated by a woman who plans to give them up and will not parent them; none of the adults involved in the surrogacy agreement is legally committed to take responsibility for them, leaving them at elevated risk of abandonment; further, surrogate children may be placed in the care of adults who have not been subject to any of the background checks that would normally apply in cases of adoption.
None of this is consistent with “the best interests of the child”. It is time for politicians to stop pretending otherwise. Whether altruistic or not, surrogacy laws facilitate the exploitation and commodification of women and children. If we are genuine about putting the needs of children first, then laws to facilitate surrogacy should not even be on the table.