The surrogacy laws in Australia: what can be useful for Ukraine

Размещено на http://www.allbest.ru/

THE SURROGACY LAWS IN AUSTRALIA: WHAT CAN BE USEFUL FOR UKRAINE

Antonov Sergii Volodymyrovych

legislative provisions аustralia ukraine surrogacy

The peculiarities of realization of the right to reproductive health for different categories of patients in Australia

Having analyzed the provisions of state laws, it is possible to identify the most significant prohibitions and restrictions based on such features as:

- type and kind of surrogacy (commercial or altruistic, traditional, or gestational);

- way of making an agreement on surrogacy (informal or formal, in particular, in the written form);

- the marital status of the intended parents and the duration of marriage (registered marriage or long-term relations without registration);

- age of potential parents (minimum and maximum);

- gender of intended parents (traditional family or same-sex couples);

- state of health of intended parents (physical and mental);

- possibility and the size of compensation of expenses connecting with medical service during surrogate programs and childbirth;

- imposing of additional obligations on the parties of surrogate program (care, visits, etc.);

- the nature and terms to ensure confidentiality;

- territory (jurisdiction) of the program Sanders, A, Global Surrogacy: Legal Regulation and Support (VERDYS Publishing, 2016), p. 178..

This generalized classification facilitates the comparative analysis of the prohibitions and restrictions on surrogacy for Australian jurisdictions where they are established.

Prohibitions and restrictions based on the type and kind of surrogacy are main and most typical for the legislation of the Australian states. In all Australian jurisdictions, commercial surrogacy is prohibited. In the Northern Territory, surrogacy is not directly regulated. The degree of the prohibition is different, and ultimately all participants of such programs can be criminalized Parentage Act 2004 (ACT), s 41; Surrogacy Act 2010 (NSW), s 8; Surrogacy Act 2010 (Qld), s 56; Surrogacy Act 2012 (Tas), s 40; Surrogacy Act 2008 (WA), s 8.. Any interposition, assistance of the organization of programs, advertising, and promotion of the service is forbidden in any way. It also should be noted without giving an extensive comment that in the three jurisdictions (NSW, Queensland, and the ACT), there is a ban on commercial surrogacy for the residents abroad See Parentage Act 2004 (ACT), s 45 (1), Surrogacy Act 2010 (NSW), s 11 (2), Surrogacy Act 2010 (Qld), s 54 (b), and see also full comm. in Trimmings, K and Beaumont P, (2013), p. 27..

In New South Wales under Surrogacy Act 2010 `commercial surrogacy arrangements are prohibited. A person must not enter into, or offer to enter into, a commercial surrogacy arrangement. Maximum penalty: 2,500 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.' Under article 38 of this Act `the birth of the child must have been registered in accordance with the requirements of the Births, Deaths and Marriages Registration Act 1995 or a corresponding interstate law. If the child was born outside the Commonwealth and registration of the birth is not permitted under the Births, Deaths and Marriages Registration Act 1995 or a corresponding interstate law, the birth of the child must have been registered in accordance with the requirements (if any) of the law of the jurisdiction in which the child was born Surrogacy Act 2010 (NSW), s 38 (2), and see also comm. in Trimmings, K and Beaumont P, (2013), p. 39..'

While there is a strict ban on commercial surrogacy, the legislation of the states and territories permits the altruistic type of surrogacy. In some jurisdictions, intended parents can even reimburse the expenses related to the medical part of the program and childbirth. The size of the payment must be of a “reasonable character See for ex. Family Relationships Act 1975 (SA), s 10G(1) and see comm. in Trimmings, K and Beaumont P, (2013), p. 36..”

In most jurisdictions, the possibility of gestational type of surrogacy program (without a genetic connection of a surrogate mother with a child) is fixed. According to Australian law, a surrogate mother is regarded as a parent, even if she is not genetically related to the child. If the pregnancy was achieved with the help of a fertility procedure and if the partner or spouse of the surrogate mother consented to that procedure, that person will also be regarded as the parent of the child. In such cases, the biological parents are conclusively presumed not to be parents of the child. An intended parent may be regarded as a parent if registered as such in a birth register, or if that person has acknowledged parental status Ibid at 41..

The legislation of some states does not set restrictions based on the type of surrogacy making it possible to consider the programs of genetic surrogacy For ex. Surrogacy Act 2010 (NSW). In literature, there are several cases of genetic surrogacy. See Trimmings, K and Beaumont P, (2013), p. 40.

****** Ibid at 31..

According to the way of entering into agreements between the participants of the program, the legislation allows both informal and formal options******. In four jurisdictions, the surrogacy agreement must be in the written form Surrogacy Act 2010 (NSW), s 34(1); Surrogacy Act 2010 (Qld), s 22(2)(d); Family Relationships Act 1975 (SA), s 10HA(6); Surrogacy Act 2008 (WA), s 17(b). There is no express requirement of writing in the Parentage Act 2004 (ACT) s 23, or in Victoria: Assisted Reproductive Treatment Act 2008 (Vic), s 3 (definition of surrogacy arrangement). The Tasmanian legislation states that a surrogacy agreement may be made orally or in writing (Surrogacy Act 2012 (Tas), s 5(6)). One of the requirements in the Tasmanian legislation that must be satisfied before the court can make a parentage order is that the agreement is in writing (Surrogacy Act 2012 (Tas), s 16(2)(e)). That requirement can be dispensed with if the court considers that making the parentage order is in the child's best interests: Surrogacy Act 2012 (Tas), s 16(3)(a). Ibid.. In most jurisdictions, the agreement is done between the surrogate mother, her spouse or partner, and the intended parents, but in Western Australia, if there is a third party egg or sperm donor, that party must also sign the agreement Surrogacy Act 2008 (WA), s 17(b). Ibid.. Three jurisdictions explicitly require that the agreement was made before the pre-conception Surrogacy Act 2010 (NSW), s 24(1); Surrogacy Act 2010 (Qld), s 22(2)(e) (iv); Surrogacy Act 2012 (Tas), s 5(5)(a). It is an implicit requirement in the other jurisdictions: Parentage Act 2004 (ACT) s 23 (definition of substitute parent agreement); Family Relationships Act 1975 (SA) ss 10HA(2)(a)(i), 10HA(2)(b) (viii) (A); Assisted Reproductive Treatment Act 2008 (Vic), s 39; Surrogacy Act 2008 (WA), s 17(c). In Victoria, it is not even an implicit requirement in cases where the pregnancy was achieved without medical assistance. Ibid..

The latter must not include provisions that are contrary to the law, in particular concerning a fee or the compensation agreed in advance. In such cases, the agreement is invalid and unenforceable Ibid and also Sanders, A, (2016), p. 314..

The legislation of the states provides clear requirement relating to the age of the participants of surrogacy programs. It applies to both intended parents and a surrogate mother. In most jurisdictions there are requirements concerning the minimum age (18 or 25 years). Three jurisdictions impose minimum age requirements for the intended parents and the surrogate mother, and another two also impose requirements for spouse or partner of the surrogate mother. The two remaining jurisdictions impose minimum age requirements only for some parties. In some jurisdictions, the minimum age is 18 years, in others it is 25 years For ex. Surrogacy Act 2010 (Qld), s 22 (2), (f). See Trimmings, K and Beaumont P, (2013), p. 30.

****** Surrogacy Act 2010 (NSW), ss 27 (1), 28 (1). Ibid.. In New South Wales, the surrogate mother must have been at least 25 years and the intended parents must have been at least 18. In New South Wales, if an intended parent was under 25 years of age, the court `must be satisfied that the intended parent is of sufficient maturity to understand the social and psychological implications of making a parentage order'******. In Tasmania, at the time the arrangement was made the surrogate mother must have been at least 25 years and both intended parents must be at least 21 Surrogacy Act 2010 (Tas), s 16 (2) (b), (c). Ibid.. In Western Australia, the surrogate mother and at least one of the intended parents must be at least 25 years old, apparently at the time of applying for parentage orders Surrogacy Act 2008 (WA), ss 17 (a), (i), 19 (1) (a). Ibid.. In Queensland, all parties must have been at least 25 years old when the surrogacy agreement was made. In South Australia the intended parents, the surrogate mother and her husband must all be at least 18 years old Surrogacy Act 2010 (Qld), s 22 (2), (f), (g). Ibid.. In the ACT, the intended parents must be at least 18, apparently at the time the application for parentage orders are made Parentage Act 2004 (ACT), s 26 (3) (b). Ibid.. There is no minimum age prescribed for the surrogate mother or her partner or spouse. According to the Victorian legislation, the surrogate mother must have been at least 25 years at the time of entering the agreement. There is no age requirement for the intended parents Assisted Reproductive Treatment Act 2008 (Vic), s 40 (1) (b); Status of Children Act 1974 (Vic), s 23 (2) (a). Ibid.

****** For ex in South Australia: Family Relationships Act 1975, s 10 HA (2) (b) (in). Ibid at 31.

******* Murphy D, Gay Men Pursuing Parenthood Through Surrogacy: Reconfiguring Kinship (UNSW Press, 2015), p. 36.

******** Family Relationships Act 1975 (SA), s 10HA (2) (b) (in); Surrogacy Act 2008 (WA), s 19 (1) (b), (2).

******** Family Relationships Act 1975 (SA), s 10HA (2) (b) (iii) and see in Trimmings, K and Beaumont P, (2013), p. 31..

The special laws of all jurisdictions have restrictions relating to the marital status of the intended parents. The laws of such jurisdictions as a South Australia impose an officially registered marriage. In this state the intended parents must be married, or `in de facto relationships of at least 3 years' standing prior to the date of the surrogacy agreement or for periods aggregating a total of three years over a four-year period immediately preceding the agreement******.

In most jurisdictions, there is a clear requirement relating to the sex of Intended parents, i.e. the structure of a family, a man and a woman, or persons of the same sex. Recently, in some jurisdictions of Australia, there have been wide discussions on the possibility of registration marriages of the same-sex spouses and giving them equal rights. Supposedly, the reform of the legislation on marriage could lead to the removing of restrictions on surrogacy*******. In South Australia and Western Australia, the same-sex couples cannot be intended parents********. Nowadays in Australia there is no discrimination between de facto and married couples********.

The restrictions on participation of single women and men in the surrogacy program should also be mentioned. In all jurisdictions except South Australia, single people can be intended parents Family Relationships Act 1975 (SA), s 10HA(2) (a) (ii). Ibid.. Consequently, a single client involves an additional participation of gamete donor Ibid at 31..

In most jurisdictions, the restrictions concerning the reimbursement of expenses related to medical care for a surrogate mother are fixed (medical services and medicines for of IVF, related to pregnancy and childbirth, and others). It is explained by the desire of the legislator to exclude the possibility of concealment of commercial surrogate arrangements. The size of expenses is not limited to a specific amount, but should be of a “reasonable character” and confirmed. Such restrictions are fixed Trimmings, K and Beaumont P, (2013), p. 33.. The specific expenses that may be recovered by the surrogate mother vary between the seven jurisdictions Ibid.. In the Australian Capital Territory, the legislation specifically refers only to recovery of expenses relating to the pregnancy, the birth and care of the childReproductive Treatment Act 2008 (Vic), s 40 (1) (a); Family Relationships Act 1975 (SA), s 10HA(2) (b) (v). Ibid.. In six states, expenses related to medical and legal services are explicitly stated to be recoverable, and in five of those the legislation specifically permits recovery of costs connected with counselling******. Reimbursement of insurance premiums and the recovery of lost income are expressly allowed in four states*******, and travel costs associated with the surrogacy may be recovered in Tasmania and Victoria********. In many jurisdictions, the health of intended parents is an important criterion. The sufficient health state provides the possibility to take care and educate a child born with the help of a surrogacy program. Limitations according to the health of intended parents are established in such jurisdictions as Western Australia********. In six jurisdictions, it must be shown that there was a need for the surrogacy********. Medical needs satisfy this requirement in all of these jurisdictions Medical needs are satisfied if the intended mother is unable to conceive (Surrogacy Act 2010 (NSW), s 30(3)(a); Surrogacy Act 2010 (Qld), s 14(2)(a); Family Relationships Act 1975 (SA), s 10HA(2)(b)(v); Surrogacy Act 2012 (Tas), s 7(2)(a); Surrogacy Act 2008 (WA), s 19(2)) or sustain a pregnancy, or if she would face serious health risks if she were to undertake a pregnancy (Surrogacy Act 2010 (NSW), s 30(3) (b), (c); Surrogacy Act 2010 (Qld), s 14(2)(b); Surrogacy Act 2012 (Tas), s 7(2)(b), (c)). The requirement is also satisfied in some jurisdictions if there is a risk that any child of the intended mother would suffer from a serious genetic abnormality, disease or illness: Surrogacy Act 2010 (NSW), s 30(3)(d); Surrogacy Act 2010 (Qld), s 14(2)(b) (iii); Family Relationships Act 1975 (SA), s 10HA(2)(b)(v); Surrogacy Act 2012 (Tas), s 7(2)(d); Surrogacy Act 2008 (WA), s 19(2). Ibid., and in three states the requirement of a social need may be satisfied if the intended parent or parents are males Surrogacy Act 2010 (NSW), s 30(2)(a), (b)(ii); Surrogacy Act 2010 (Qld), s 14(1)

(a) , (b)(ii); Surrogacy Act 2012 (Tas), s 7(1)(a), (b)(ii)..

Only in two states there is requirement that some of the parties have undergone assessment to confirm their suitability to be involved in the surrogacy arrangement In South Australia, the surrogate mother must have been assessed and approved by an accredited counselling service: Family Relationships Act 1975 (SA), s 10HA(2)

(b) (vi). Ibid.. In three states, the requirement to the surrogate mother is that she must usually have already given birth to a live child Surrogacy Act 2012 (Tas), s 16 (2) (d); Surrogacy Act 2008 (WA), s 17 (a) (ii); Assisted Reproductive Treatment Act 2008 (Vic), s 44 (1) (ac). Ibid.. Two jurisdictions mandate that one of the intended parents is genetically related to the child, and one of those jurisdictions also requires that neither surrogate parent is genetically related to the child. In Victoria, the requirement is that the surrogate mother must not be genetically related to the child.

The legislation of certain jurisdictions has limitations relating to additional obligations concerning the care and help for a surrogate mother. They may be agreed during entering into an informal or a formal agreement, e.g. child care. Specific obligations are not described in the law Ibid at 32.

****** The child's contact with surrogate mother is referred to in the same cases, for ex. Re A & B [2000] NSWSC 640, (2000) 26 FAM LR 317 and see com. Trimmings, K and Beaumont P, (2013), p. 34..

In most Australian jurisdictions, the surrogacy legislation does not specifically refer to the surrogate mother's entitlement to maintain contact with the child. Ongoing contact between the child and the surrogate mother is referred to only in the legislation of Tasmania and Western Australia******. In Western Australia, the plan that the intended parents and surrogate parents are required to make concerning the child must set out arrangements about the child's contact with the surrogate parents If entry into a surrogacy arrangement outside the jurisdiction there may be effects within the jurisdiction. It is possible to take the following cases into consideration: Hubert v Juntasa [2011] FamCA and Johnson v Chompunut [2011] FamCA..

Confidentiality and privacy of legal surrogacy relations is very important. The need to save privacy and limit access to information of third persons is defined in special legislation of surrogacy in all jurisdictions. In particular, it applies to such privacy issue as providing the child with the information about his origin. In most jurisdictions, the legislation regulates access to information concerning the surrogacy, particularly information recorded in birth registers after a parentage order has been made Surrogacy Act 2010 (NSW), ss 55-57; Surrogacy Act 2008 (WA), s 38.. Children are entitled to access court records relating to applications for parentage orders, although the courts' leave to do so is required. It involves long-term storage and the provision of the adult child with the information about the donor on his request Surrogacy Act 2010 (NSW), s 53; Surrogacy Act 2010 (Qld), s 52; Family Relationships Act 1975 (SA), s 10HE; Status of Children Act 1974 (Vic), s 34; Surrogacy Act 2008 (WA), s 37 (1). See Trimmings, K and Beaumont P, (2013), p. 34..

In terms of law and the protection of human rights in the field of surrogacy, the territorial jurisdiction is important. According to this feature, the state legislation of Australia greatly differs from other countries. Three jurisdictions (NSW, Queensland and the ACT) have the ban on commercial surrogacy programs abroad Parentage Act 2004 (ACT), s 45 (1); Surrogacy Act 2010 (NSW), s 11 (2); Surrogacy Act 2010 (Qld), s 54 (b).. The surrogacy legislation incorporates nexus provisions in relation to the criminal offences. Established ban implies even criminalization of its violators. One purpose of these provisions is to prevent the exploitation of surrogate mothers in developing countries. In the other jurisdictions, the general rules of the criminal law would be applied to determine the scope of operation of the legislation.

According to the information from the media and specific court practice, the mentioned prohibitions and restrictions do not stop the Australians See Sanders, A (2016), p. 182 and also Everingham, Sam G., Stafford-Bell Martyn A, and Hammarberg K, `Australians' Use of Surrogacy' (2014), Medical Journal of Australia vol 201 (5), p. 1-2.

****** The cost of commercial surrogacy programs abroad is quite high, at least 40,000 USD (in Ukraine). See Sanders, A (2016), p. 45.

******* See Everingham and others (2014), p. 3.. Both couples and single people use the right to procreation and parenthood. They are trying to find a way to carry out such programs abroad including in Ukraine******. First of all, it deals with the commercial surrogacy. The altruistic variant is very difficult to realize due to a very small number of women who are ready to become a surrogate mother without a fee*******.

In Australia, surrogacy is not prohibited, but the country does not have `surrogacy-friendly' jurisdictions. Special laws of most states and territories establish a number of prohibitions and restrictions on surrogacy. The prohibition on agreements about commercial surrogacy is the most serious of them. Moreover, several states established a prohibition on the signing of such agreements for their residents even abroad. Such an obstacle does not exist in the legislation of other countries of the world.

In spite of the wide range of argumentative positions on the legal restriction of the use of surrogacy, it is necessary to continue looking for a balance between interests of society and people who want to become parents of children genetically related to them. Some of the main reasons that explain the prohibition on the agreements about commercial surrogacy are concerns about possibility of exploitation of surrogate mothers and the violation of the rights of children born after the signing of such agreements. Such threats may take place; however, it is possible to avoid these problems easily by operating within the law as well as specific mechanisms and procedures of strict control by the state.

In our opinion, Ukraine should learn from the successful experience of creating legislative norms of individual states and territories of Australia. First of all, this concerns the organization of state control and ethical standards. The comprehensive control should be done at all levels, stages, and with respect to all subjects involved in the organization and conduction of these reproductive programs: intended parents, surrogate mothers, agencies, medical institutions, and lawyers.

Антонов С.В.

Законодавство про сурогатне материнство в Австралії: що може бути корисним для України

Размещено на Allbest.ru