How what Nicole Kidman has done will soon be a crime in NSW

by jeeg 18. January 2011 20:02

As actress Nicole Kidman celebrates a second daughter born through a surrogate mother in the US, NSW law is about to change to declare criminal mothers who attempt to do the same.

The NSW's Surrogacy Act, which was passed in November but has not yet come into force, will impose penalties of two years' jail, a $110,000 fine, or both on parents who pay for a surrogate here or abroad to carry their child.

Commercial surrogacy is illegal in Australia. But under the new law, NSW residents face prosecution for using commercial surrogacy overseas.

"We do not support it here so why should we support it overseas?" the NSW Minister for Community Services, Linda Burney, asked in Parliament last year when she spoke in support of the bill.

"I believe the message this Parliament needs to send to all citizens is that commercial surrogacy - an act that commodifies women and children - is wrong, whether it takes place in Australia or another State or another country," she also wrote in an email to all members of parliament before debate on the bill.

Altruistic surrogacy, where a woman is not paid to carry a child, is permitted in Australia but rarely carried out.

Only about 30 to 50 couples undergo the procedure every year, and it is mainly used when mothers experience a problem with their uterus, said IVF Australia's medical director Dr Peter Ellingworth.

About the same number of couples travel overseas to countries like the United States, Thailand and India to pay for surrogacy, said Professor Jenni Millbank of the University of Technology, Sydney, who specialises in surrogacy and family law.

Megan Sainsbury, who has worked for a surrogacy clinic in Delhi, India and has herself had a child born through a surrogate mother, said actual numbers were much higher.

"At the moment, there are 100 babies due [at the clinic] before September and 60 per cent of them are to Australians. We have 120 clients enrolled and receive about 300 enquiries a year.

"And that's just one clinic out of about 300 in India."

While commercial surrogacy is commonplace in countries like the United States - and can cost about $150,000 - it has been frowned on in Australia due to fears that pregnancy outsourcing might occur and some women might choose to become a surrogate mother out of financial desperation.

But Professor Millbank said extending NSW law to encompasses overseas procedures was "not very well thought through" and would only further burden returning couples.

"I think the implications are that couples will lie on birth documentation and pay to obtain fradulent birth documentation in order to bring their children back to Australia without being prosecuted," she said.

"I think there will be a rush of people trying to sign contracts with surrogates before the Act comes into effect.

"I've been contacted by parents who for instance had their first child and they have embyros stored in the US planning to have a sibling for that child and they now don't know what they can possibly do apart from moving interstate."

Greens MP David Shoebridge added that the legislation would not stop parents from turning to commercial surrogacy to have a child, but instead "drive the practice underground" and "create uncertainty around many children's parenting".

When asked today if Ms Burney had changed her position after Kidman's annoucement, she said: "Of course not."

A spokeswoman for NSW's Attorney-General, John Hatzistergos, said both national and NSW health and legal bodies rejected commercial surrogacy in Australia and the "extension of the offence provisions to arrangements entered into overseas ensures that NSW policy in this area is not undermined".

She added that a transitional provision within the new laws would ensure parents who signed surrogacy agreements before the laws commence would not be affected or unfairly disadvantaged.

"The provision recognises that some couples have spent a substantial amount of time and money on overseas arrangements, before they were aware of the potential impact of the new Act and follows extensive consultations with affected groups."

Pru Goward, the NSW shadow minister for community services, also supported Ms Burney's amendment to the bill last November, but said today that while she maintain her stance against commercial surrogacy both in Australia and overseas, it was unclear to her how the legislation would be enforced.

But there is one loophole for NSW parents unable to find a relative or a friend able or willing to be their surrogate mother and also not permitted under the law to advertise for surrogates - they could "meet someone on the net", Canberra Fertility Centre’s medical director, Dr Martyn Stafford-Bell, said.

"It’s a neat little way of getting around the law which says you can't advertise.

"You can get into a chatroom and talk about it and make friends. There is nothing in the law that will actually prevent you from doing that."

Under NSW law, the legal mother of a child is the woman who gives birth to the baby. The new Act makes it easier for parentage of a child to be transferred from the surrogate mother to the intended parents.

Glenda Kwek, Sydney Morning Herald


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