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Evaluate the effectiveness of legal and non-legal measures in dealing with surrogacy and birthing technologies in Australia

Australian legal and non-legal measures, whilst somewhat limited and scarce, have been effective in
dealing with surrogacy and birthing technologies. The multitude of state legislative reforms, have
effectively accommodated the changing values of society, and have also clarified the uncertainty and
conflict regarding this contemporary issue. However, issues regarding assisted reproductive
technologies remain prevalent throughout society, as the demand for surrogacy and birthing
technologies increases, hence reflecting the growing presence/acceptance of the LGBT community in
Australia, and the fact that 1 in 6 couples are affected by infertility, thus reaffirming the Human
Rights Law Centre’s statement that “Australians are the largest client market for international
surrogacy and birthing technology arrangements”. Additionally, the dis-inclusion of surrogacy and
birthing technologies as a federal matter, heightens the withstanding issues, and challenges the
protection and individual rights of various family members.

 

The Surrogacy Act 2010 (NSW), is effective law reform which has significantly improved the NSW
Government’s responsiveness to surrogacy, and the issues surrounding it. The legislation, introduces
statutory provisions which enable the full transferral of parentage status, which allows previous donor
agreements, which are not legally-binding, to be recognised and fulfilled, hence providing relief and
certainty for parties involved in surrogacy arrangements. Hence, this is meeting society’s needs, by
adapting to changing societal values and by accommodating contemporary family structures and
members. Additionally, the Surrogacy Act prohibits commercial surrogacy, which is a surrogacy
arrangement which involves the provision of a fee, reward or other material benefit to a person for a
child. The prohibition of commercial surrogacy is effective, as it enshrines individual rights and
freedoms which are outlined in the Convention on the Rights of the Child (CRC), into state
legislation, hence upholding Australia’s obligations to international law, whilst also protecting the
individual rights and freedoms of children. As according to Article 35 of CRC, state parties shall take
all appropriate measures to “prevent the sale of or trafficking of children for any purpose or form”.
Although, despite the prohibition of commercial surrogacy, the Surrogacy Act has no jurisdiction to
enforce such terms upon Australian citizens who are participating in commercial surrogacy
arrangements overseas. Thus the Act lacks enforceability, as upon return to Australia, individuals are
not penalised for their actions undertaken overseas, which leads to cases of exploitation and
discrimination, such as that witnessed in the Gammy case, whereby twins were separated after birth,
and currently live with different ‘parents’ in different countries, due to incompetent jurisdiction of
Australian law and the improper regulation of international surrogacy arrangements. Moreover, the
Surrogacy Act’s permissibility of altruistic surrogacy expresses and protects individual rights, as
according to the Universal Declaration of Human Rights (UDHR), every individual “has the right to
found a family” (article 16), and “the right to benefit from scientific progress” (article 15). Thus NSW
legislation is fulfilling Australia’s international obligations, as signatories to the CRC and the UDHR,
by prioritising the rights and freedoms of individuals. Ultimately the Surrogacy Act is effect, as it has
been utilised to improve NSW’s responsiveness to issue surrounding surrogacy, whilst it balances the
rights of gestational and biological parents, and protects the individual rights of children, who are
born as a result of surrogacy.

 

Assisted Reproductive Technology Act 2007 (ART Act) , is effective legislation which regulates the
ethical and social aspects of assisted reproductive technology (ART), including surrogacy, IVF and
artificial insemination. The ART Act is effective family law legislation, as one of its objectives is the
‘prevention of commercialisation of human reproduction’, hence reducing exploitation, which is
internationally regarded as an injustice, thus protecting gestational parents from unfair treatment and
disadvantage. Additionally, the ART Act protects the interests of all those involved in assisted
reproductive agreements or procedures, including the person born as a result of ART, people
providing gamete for use in ART treatment, and the woman undergoing ART treatment. Thus the
ART legislation is further effective, considering the way in which it balances the needs of different
people, whilst meeting society’s needs.

 

Advances in birth technologies have challenged the legal presumption and definition of a ‘ parent’. In
regards to surrogacy, considering that the child is not conceived within a domestic relationship, the
surrogate mother has exclusive custody rights and she cannot be forced to give up the child. Such was
illustrated in the case Re Michael: Surrogacy Arrangements (2009) , which centred around the
question regarding who was the parents of a child who was born as a result of a surrogacy agreement.
The case was brought before the Family Court, as an adoption application for a surrogate child,
however it was found that the adopting parents were barred by the common law principle of
‘presumption of paternity’, which entails that the child was deemed to be the natural mothers.
However, the adopting couple (biological parents) were still able to apply to the NSW Supreme Court
for an adoption, under the Adoption Act 2000 (NSW) , which is not bound by the same presumption of
paternity. Hence, such legislation is effective as it considers the individual rights and freedoms of
biological parents, and empowers the surrogate child and biological parents to have a relationship,
which according to Family Relationships Online, which is an Australian Government Initiative,
“contact with family members and both parents is considered to be the right of the child”, and where
appropriate, significantly contributes to the “emotional and psychological development” of the child.
Hence, the Adoption Act is effective in protecting the individual rights and freedoms of children.
The Status of Children Act 1996 (NSW) is effective as it achieves justice, whilst also promoting the
individual rights and freedoms of children. Justice is achieved through the legislation as it promotes
equity, as it ensures that all children, regardless of whether being born naturally or by assisted by
birthing technology, have the same legal status. Which upholds Article 2 of CRC which states that
“State parties shall respect and ensure the rights of each child within their jurisdiction without
discrimination of any kind” “irrespective of the child’s parents or birth”, hence protecting the rights of
all children born from artificial birth technologies, which is vital, as according to the United Nations,
and past former president of South Africa, Nelson Mandela, “children are the most vulnerable citizens
in society”. Moreover, the legislation is effective, as its enforceability is highly prevalent throughout
NSW, as according to an article, “Children are not demoralised based on their conception and birth”,
by Sydney Morning Herald (SMH), in 2014, “discrimination associated with birthing technologies
does not exist, and there are no notable disadvantages against children who are born through the use
of birthing technologies”. Thus, reaffirming the effectiveness of the Status of Children Act,
considering its protection of individual rights and enforceability.

 

Surrogacy Australia, is an effective national lobby group, which advocates to “enhance the
understanding of and access to best practice surrogacy procedures and arrangements”. Currently,
Surrogacy Australia is lobbying for Medicare reform, as current Australian medicare policies forbid
rebates for IVF use for surrogacy, forcing couples to pay on average $12,000-$18,000, which is a
great discrimination for couples whose only option to create a family is through surrogacy.
Additionally, ABC published an article, titled ‘The surrogacy trap: why our laws need new life’,
which states that “each year, hundred of Australians will continue to flout, duck and bend the laws in
what for some is a desperate desire to have children. As long as federal and state authorities look the
other way, the situation is unlikely to change. In whose best interests in that?”, hence highlighting
Australia’s governmental lack of acknowledgement for surrogacy and the changing societal values, as
well as the evolving concept of family. Thus, Australian non-legal measures are effective as they
create awareness, whilst adequately applying pressure on Australian governments to increase their
responsiveness and meet society’s needs. Moreover, such non-legal measures have been effective in
influencing the Australian Government, as during the ‘Inquiry into Surrogacy’ on the 8th of May
2016, Chief Judge John Pascoe stated that Australia needs “to develop a nationally consistent
approach to surrogacy which considers the rights of all participants”.

 

In conjunction, legal and non-legal measures have been effective in dealing with issues surrounding
surrogacy and birthing technologies in Australia. In regards to withstanding limitations, the
‘Regulating Surrogacy in Australia’, report published by the Human Right Law Centre, criticised the
“complicated and conflicting nature of Australian surrogacy laws and the discriminatory laws that
exclude same sex and single intended parents in a number of Australian states”, hence reflecting that
national unity, in regards to legislation and the approach to surrogacy and birthing technologies,
would be advantageous in increasing the Australia’s enforceability over such procedures, and in
increasing the accessibility of such procedures to Australians. Conclusively, however, Australian
mechanisms and legislative measures are effective, in recognising the changing nature and concept of
family, and in accommodating changing societal values, whilst protecting the rights and freedoms of
individuals.

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