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”.
*I posted this in March on an earlier blog ‘Surrogacy Australia‘ I decided to deactivate the blog because the title was miss leading. The IP information group Families Through Gestational Surrogacy wanted to use the title Surrogacy Australia. I thought it would be useful to re-post this entry here*
Linda Burney and Jenni Millbank edit delete
Tuesday, March 08, 2011
Yesterday the ABC Radio program ‘Life Matters’ presented ‘Surrogacy: the case for and against’. The segment ran for about 20 minutes with the NSW minister for community service Linda Burney giving her case against commercial surrogacy and Professor Jenni Millbank of UTS Law giving the case for commercial surrogacy.
It was not as straight forward and “for” and “against” surrogacy more broadly but more of a set of arguments for and against commercial surrogacy specifically. To summarise some of the main points;
According to Linda Burney (who was involved with the recent extension of the ban on commercial surrogacy in NSW to overseas):
1. The NSW ban on commercial surrogacy is more about the tightening up of regulations and rights in relation to the legal status of altruistic surrogacy
2. The reasoning behind the recent legislative ban on commercial surrogacy in NSW both in Australia and abroad is mainly about the rights of the child to have access to their gestational and genetic parentage.
3. The emotional and physiological experience of pregnancy and birth should not be underestimated.
4. There is evidence of the exploitation of both the child and the surrogate mother.
5. concern about the commodification of children and the perception of women as vessels.
6. Concern about a lack of regulations in the case that a child is born disabled or if something happens to (harm the health of) the surrogate mother during the pregnancy or birth.
Jenni Millbank’s main points:
1. Surrogacy “takes a very special kind of woman” and the emotional experience of surrogacy is the same whether the surrogate mother receives compensation for her time or not.
2. The main area requiring attention in terms of law and regulation is that of informed consent and the right of the surrogate mother to makes decisions throughout the pregnancy and after the birth of the child.
3. The involvement of money regarding the latter statement makes this scenario more difficult (but not impossible to regulate).
4. The response of couples who are unable to have children without outside help in cases where the law restricts outside help are more likely to travel overseas in order to have a child of their own.
5. Adoption in Australia is both rare and difficult with a number of exclusions including the exclusion of same sex couples, couples past a specific age, either of a couple being definable as having a disability. And fostering takes a “special kind of person” because the fostering parents must be prepared to allow the child to return to their genetic parents.
I think it is interesting that Linda Burney’s case against commercial surrogacy does not give any reasons specific to commercial surrogacy – her points could apply to any form of surrogacy and perhaps also adoption. It is unclear how her argument relates to commercial surrogacy specifically.
Jenni Millbank’s argument for commercial surrogacy seems much closer to the point as she is specifically comparing some differences and similarities between commercial and altruistic surrogacy.
What is missing from this argument is the lived experience of commercial surrogacy, we are missing the voices of people who have experienced surrogacy first hand: the voices of intended parents who have become parents through commercial surrogacy arrangements, or altruistic surrogacy arrangements and the voices of surrogate mothers commercial or altruistic – and of course the voices of any children born of a surrogate mother.