The issue of commercial surrogacy has recently entered the Australian psyche. In all the States and Territories in Australia except for one, commercial surrogacy is illegal. In two of the states and in the Australian Capital Territory, that illegality extends to commercial surrogacy contracts contracted outside Australia; in other words those three jurisdictions have created commercial surrogacy as an extraterritorial criminal offence.
Despite this many couples and even single parents are taking advantage of advances in technology to have a baby carried by a surrogate mother in overseas countries. In most, but not all cases, the egg is provided by a separate donor, usually anonymous, and the surrogate mother has biological connection with the child she is carrying.
For several years the varying laws in different states in Australia have created problems for the Family Court when parties return to Australia with children born from commercial surrogacy in some circumstances legally and in others illegally, and seek parenting orders from the courts. The courts have had to deal with these cases.
Although it is illegal in Australia for commercial surrogacy that has not prevented many Australians from going to other countries, particularly those poorer countries in our region and there is a flourishing surrogacy industry in India and Thailand for Australians. The economic capacity of Australians to pay for commercial surrogacy arrangements and the need for impoverished women in these countries to provide for their families makes for enormous power imbalance in the commercial contracts that are contracted. The Commonwealth Attorney-General has recently released a report from the Family Law Council (a statutory family law advisory council) on surrogacy in Australia and the topic came to the attention of the Australian press recently when a Thai surrogate mother revealed that Australian commissioning parents had refused to accept one of twins with health problems and she was left unable to financially care for the child without any support from the parents. My paper will discuss the interface between the availability of technology which enables anyone to commission a child and the problems that can raise for the surrogate mother, unwanted children and lack of regulation about the who the commissioning parent or parents might be and whether there is anything which would render them unsuitable. Even in the happiest of arrangements into which a surrogate child is brought, it is often the case that the child will grow up without any knowledge, or capacity to know about one half of their genetic make up.
She will discuss issues such as, what are possible solutions there might be and the extent to which the international community, particularly the Permanent Bureau at the Hague is addressing this issue.
Welcoming Speech by The Honourable Justice Margaret Beazley AO
Facilitator – The Hon. Justice Shane Marshall
The Hon. Chief Justice Diana Bryant AO : “Commercial Surrogacy & Australian Psyche”
Q & A
Few Highlights from the lecture :
The Honourable Chief Justice Diana Bryant AO
The Honourable Diana Bryant AO was appointed Chief Justice of the Family Court of Australia on 5 July 2004. Prior to her appointment she was the Chief Federal Magistrate of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) from 2000-2004, having guided the emergence and growth of that court as the inaugural Chief Federal Magistrate.
Before her appointment to the Bench, Chief Justice Bryant practised as a family lawyer with a national firm in Perth and spent ten years at the Victorian Bar, being appointed a Queen’s Counsel in 1997. She has had a longstanding commitment to the advancement of women in the law and is currently the Patron of Australian Women Lawyers and a committee member of The Australian Association of Women Judges. She is also a Board member of the Association of Family and Conciliation Courts (AFCC) and President of the Australian Chapter of the AFCC.
Chief Justice Bryant received a Centenary Medal in 2001 for her role in the establishment of the Federal Magistrates Court and was made an Officer of the Order of Australia in 2011 for her distinguished service to the judiciary and to the law, particularly to family law policy reform and practice, through the establishment of the Federal Magistrates Court, and to the advancement of women in the legal profession.
Guest Facilitator : The Honourable Justice Shane Marshall
Justice Marshall was appointed to the Federal Court of Australia and the Industrial Relations Court of Australia in July 1995 after a career at the Victorian bar, spanning almost 14 years, almost exclusively in the industrial relations and employment areas.
In 2003, Justice Marshall received a centenary medal for services to industrial relations.
From January 2004 until September 2013 Justice Marshall was an additional non-resident judge of the Supreme Court of the Australian Capital Territory, sitting in the trial and appellate divisions of that court.
Justice Marshall served on the Board of the Law Faculty of Monash University from April 2008 to October 2013 and currently sits on its replacement, the External Persons Advisory Committee for the Monash Law Faculty.
In September 2013, Justice Marshall became one of the inaugural ambassadors for the Wellness and the Law Foundation – a joint initiative of the Law Institute of Victoria and the Victorian Bar.
In October 2014, Justice Marshall became Deputy Chair of the Advisory Board to the Australian Intercultural Society – an inter-faith dialogue body.
On 1 February 2015 he became an Adjunct Professor in the School of Law at the University of Western Sydney and a Director of the LUCRF Community Partnership Trust.