An interview with Jenni Millbank was reported in the SMH today. Prof. Millbank explains that the most logical avenue for the law would be to allow a form of commercial surrogacy in Australia. Here is an extract, well actually most of the article:
Jenni Millbank, a professor of law at the University of Technology Sydney and an expert in surrogacy law, described the legal situation around surrogacy as chaotic and the Australian approach as a ”manifest failure”.
She said states’ bans on commercial surrogacy might have afforded children less protection, and a wage-based compensation for local surrogate mothers might help reduce incentives for overseas travel. ”Keeping surrogacy onshore would … provide a far greater opportunity for harm minimisation objectives to be pursued”, she said.
Professor Millbank said under the Family Law Act, and state and territory law, children brought into the country were not considered the legal children of the intended parents regardless of relinquishment documents, foreign birth certificates, and the granting of citizenship.
”The woman who gave birth and her consenting husband or partner are the legal parents under our family law,” she said.
That left the Immigration Department in a quandary: ”It’s trying to prevent children born through international commercial surrogacy arrangements from being rendered stateless orphans,” she said.
Once in Australia, the intended parents could go through legal processes to gain a transfer of parental rights from the birth parent.
About 14 cases had ended in the Family Court of Australia to gain parental responsibility orders. Professor Millbank argued the Family Court gives much less consideration to the matter of the birth mother’s informed consent – one of the few safeguards available to ensure the child’s welfare.
”You can have children in any one of a dozen ways; it doesn’t determine whether you’re going to be an abusive parent,” she said. ”’You only have to look at child abuse figures to see the vast majority of abusers are heterosexual men. It doesn’t mean fathers everywhere should go through criminal record checks.”
It was really great to read Prof. Millbank’s recommendations this morning after the Catholic Archbiship Hickey’s statement was given air time on Sunrise this morning. The AB stated that he felt “modern families” are damaging children. I’m not sure how the ABs opinion is relevant to thought on surrogacy. It would make more sense to give more air time to scholars and experts. The recent relevant scholarship on the welfare and psychological well being of children (see Susan Golombok’s work for example, and send me a message if you’d like more refs. on this topic) demonstrates that parents’ gender does not impact the well being of children, a stable and loving family is what makes all the difference and as Prof. Millbank points out in the article above “the vast majority of abusers are heterosexual men”.