Australian surrogacy laws lead to complications

Surrogacy is a minefield for black-letter lawyers, not just for emotional parents, as a recent case in Australia shows. Australia has a federal system, and each state has its own laws, even though there are constant attempts to harmonise them. In New South Wales, where Sydney is located, there is no law specifically governing surrogacy. This led to some unexpected results for Sharon, Paul, Michael, Lauren and Clive.

Before having chemotherapy, Sharon had some of her eggs stored. In October 2008, after these had been fertilised with her husband Paul’s sperm, her own mother Lauren gave birth to Michael. For Lauren, it was easy to hand over the child and she felt no emotional involvement.

When the legal niceties came to be straightened out, there was a surprising outcome. Judge Garry Watts had to rule on the case according to a statute which had not envisaged contemporary surrogacy. As a result, he said that the legal mother of Michael was Lauren and the legal father was Clive, her defacto, who had nothing to do with the child.

Australian legal experts want the law to be brought up to date. What is needed, they say, is a simple law that would enable the birth mother to transfer parentage to the couple who organised the surrogacy or donated the eggs and sperm, within the first three months of life, while continuing to ban commercial surrogacy.

One reason for urgency is a trend for couples to escape the legal mess in Sydney and arrange a surrogacy overseas. They then "dare" the local courts to remove the baby from them. Normally the courts agree and grant a parenting order.

But Anita Stuhmcke, of the University of Technology, Sydney, an expert on surrogacy, points out that to stop people from going to exploitative womb factories in countries like India, it will become necessary to legalise commercial surrogacy in Australia. The complications never seem to end. ~ Australian, August 12

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