FAMILY - surrogacy and birth technologies

Question 1

List 4 laws

Answer 1

• Status of the Children Act 1996 (NSW)
• Surrogacy Act 2011 (NSW)
• Assisted Reproductive Technologies Act 2007 (NSW)
• Miscellaneous Amendment (Same-sex Relationships) Act 2008 (NSW)

Question 2

List the 4 laws again and explain what they aim to do

Answer 2

• Status of the Children Act 1996 (NSW) –> established principle of ‘presumption of paternity’ which is automatic and irrefutable which meant that the birth parents aren’t necessarily the legal parents
• Surrogacy Act 2011 (NSW) –> criminalises commercial surrogacy. Created a 30-day ‘cooling off period’ wherein the surrogate has 30 days to carefully consider the decision before giving consent to the arrangement of a parentage order. Lists specific requirements for the arrangement such as that it must be in best interests of the child, cannot be commercial, birth mother must have counselling and legal advice prior to entering into the arrangement.
• Assisted Reproductive Technologies Act 2007 (NSW) –> determined that children born through IVF have same legal status as children conceived naturally. It also regulates many of the legal and ethical issues around artificial reproductive technologies
• Miscellaneous Amendment (Same-sex Relationships) Act 2008 (NSW) –> gave same-sex couples access to ART, established that all women have access

Question 3

quotes 3

Answer 3

• ‘Couples often look for surrogates online, on websites that resemble online dating services.’ - ABC, 2017 and ‘Background Briefing spoke to several women who advertise as surrogates and said they had been offered money “on the sly”. One surrogate said she was offered close to $30,000’
• ABC 2022 reveals story about Eleni McIlory, “There are no records of how many siblings might’ve been created for me. So, I will never know”, struggles with the thought of never know, asks for better regulations about record keeping, the ability to access the medical records of the donor, ‘there’s eight of us so far’
• SMH 2021 article: same-sex couple Tracey Pinto and Rebecca Felsch suffered from the financial inaccessibility of IVF due to the fact that they are considered ‘socially infertile’ and thus not entitled to Medicare rebates, Pinto saying ‘I started working two jobs’, ‘we had to decide whether to refinance our house or draw on our super, and in the end we decided on taking from our super. But even that cost money’. Medicare doesn’t give rebates for IVF for ‘socially infertile’ couples

Question 4

cases 5

Answer 4

• Baby Gammy case 2014 –> dangers and complications of process, surrogate in Thailand gave birth to twins, one with down-syndrome whom was left in the care of the birth mother and other child given to commissioning parents in Australia - separation of twins reveals ethical issues
• David and Nicky Beard 2016 - went to Mexico to have a surrogate, claimed the experience was ‘hellhole’ and ‘dangerous’ (The Guardian, 2016). Also, Mexico recently banned international surrogacy for homosexual couples, but the website said the surrogates were pregnant before this law passed. issues raised in the case: blackmailing, medical attention refused to the
  surrogate mother, and lastly, they are unable to leave Mexico with officials denying their new surrogate child a birth certificate
• Clarke v Tolley (2001). The mother who gave birth through IVF was given full custody while absolutely no legal
  status was awarded to the lesbian partner who had supported the child for 4 years
• A man who donated his sperm to a friend with the belief he could play a role in the child’s life has won a High Court fight sparked by the mother’s decision to move to New Zealand with their biological child, not so much because he was biologically the parent but was called ‘daddy’ by the child, maintained a close relationship with them
• SMH 2021 article: same-sex couple Tracey Pinto and Rebecca Felsch suffered from the financial inaccessibility of IVF due to the fact that they are considered ‘socially infertile’ and thus not entitled to Medicare rebates, Pinto saying ‘I started working two jobs’, ‘we had to decide whether to refinance our house or draw on our super, and in the end we decided on taking from our super. But even that cost money’. Medicare doesn’t give rebates for IVF for ‘socially infertile’ couples

Question 5

international law 6

Answer 5

• A24 ICCPR instructs that children have a right to be registered immediately after birth
• UN report: Birth registration and the right of everyone to recognition everywhere as a person before the law reinforced A24
• UN Human Rights Council Report on Surrogacy: Safeguards for the protection of the rights of children born from surrogacy arrangements
• A8 CROC - right to identity and access information about their identity
• A23 ICCPR right to marry and have a family free from discrimination
• A26 ICCPR free from discrimination

Question 6

stats 4

Answer 6

• Medical Journal of Australia: Among those who only considered one option, overseas surrogacy was considered significantly more often than domestic surrogacy (92% v 8%) and Barriers discouraging domestic surrogacy included concern that the surrogate might keep the child (75%), belief that it was too long and complicated a process (68%) and having no one of the right age or life stage to ask (61%)
• over12,056 babies were born following assisted reproductive technology treatments in 2010 - AIHW
• 1 in 25 children are born of ART - AHIW
• 672% increase in IVF usage for same-sex couples 2008-2018