Date: 
Thursday 17 March 2016

National Children’s Commissioner Megan Mitchell has appeared before a parliamentary inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements

Commissioner Mitchell told the inquiry that the regulatory regime dealing with surrogacy must be consistent with human rights, making a number of recommendations to government.

Commissioner Mitchell said there were four guiding principles which provide a framework for determining whether particular proposed changes to the law are consistent with human rights.

“First, the best interests of the child must be protected,” Commissioner Mitchell said.

“This includes the child’s safety and well-being and children’s right to know about his or her origins.

“Second, the surrogate mother must be able to make a free and informed decision about whether to act as a surrogate.

“Third, there must be sufficient regulatory protections in place to protect the surrogate mother from exploitation.

“And lastly, there must be legal clarity about the parent-child relationships that result from the arrangement.”

The Commission made four recommendations about changes to domestic surrogacy arrangements:

  • There should be renewed efforts to harmonise surrogacy laws across Australia.
  • It should be easier for intended parents to access official information about surrogacy and to find women who are willing to act as surrogate mothers.
  • Same-sex couples should be able access surrogacy arrangements on the same basis as heterosexual couples.
  • All States and Territories should include criteria in their laws that are directed at the suitability of intended parents. This should include, at a minimum, criminal record checks and working with children checks but ideally also mandatory information and counselling sessions. 

Commissioner Mitchell said the fourth recommendation was not made on the basis that intended parents in surrogacy arrangements pose a greater risk to children.

“Rather, the recommendation is made because Australia has a responsibility to ensure the safety and wellbeing of children in all cases where it regulates the transfer of parental responsibility,” Commissioner Mitchell said.

In relation to international surrogacy arrangements, the Commission recommended that the Commonwealth undertake a systematic review of the structure and enforcement of regulatory regimes in countries where Australians engage in or have the potential to engage in surrogacy.

Commissioner Mitchell said bilateral negotiations may be required to ensure that particular countries provide sufficient regulatory protections.

The Commissioner also noted that if the Commonwealth does permit international surrogacy arrangements, then some changes would be required to Commonwealth laws in order to clarify parent-child relationships.

“If the Commonwealth decides to prohibit international surrogacy arrangements in some circumstances, it will need to consider how it deals with cases where those prohibitions are breached,” she added.

“Will the children born as a result of those arrangements be entitled to Australian citizenship? If they are not, is there a risk that they will be left stateless? These issues must be addressed if the rights of the children are to be protected.”

The Commission recommended that the Commonwealth continues to engage with the Hague Conference on Private International Law on legal issues relevant to international surrogacy and human rights.

For more information see the Australian Human Rights Commission’s submission to the inquiry.