The Surrogacy Bill 2010 has been welcomed for giving certainty to parents entering altruistic surrogacy arrangements, but blasted for punishing those who enter into commercial arrangements with up to two years jail or a fine of $110,000 or both.

Originally the bill only made people liable for prosecution where they entered into commercial arrangements within Australia. But an amendment by Labor’s Linda Burney and supported by Clover Moore extended the penalties to commercial arrangements outside Australia.

When the bill returned to the Legislative Council for a final vote the National’s Trevor Khan moved to limit the Burney amendment after reading from a constituent’s letter about the stigmatising effect on children born through commercial surrogacy, and that it might discourage parents to seek orders to secure their legal rights.

This was defeated 29-8, despite all four Greens, Labor’s Ian West and Lynda Voltz, and the Liberals Catherine Cusack joining Khan to vote for it.

A number of Labor politicians, including Penny Sharpe, raised concerns about the amendment but supported it to ensure the passage of the bill. The legislation is not retrospective.

The NSW Gay and Lesbian Rights Lobby (GLRL) welcomed the bill for allowing children born through altruistic surrogacy to have their intended parents legally recognised and for setting what were reasonable expenses to reimburse a surrogate mother for.

“[But] extraterritorial criminal sanctions and the inability to register transfers of parentage issued by foreign jurisdictions in commercial surrogacy agreements undermines the best interests of children living in NSW conceived through those means,” GLRL co-convenor Rathana Chea said.

Gay Dads Alliance spokesman James told the Star Observer they welcomed the altruistic parts of the bill, but said criminal sanctions in the bill were concerning.
“It is of grave concern for the Gay Dads Alliance that the pursuit of what many men have done across Australia over the last 10 years in seeking to realise their dreams of fatherhood is now perceived to be a criminal activity,” he said.

Accredited family law specialist and volunteer with the Inner City Legal Centre Paul Boers said he could not advise people to enter into arrangements which could subject them to prosecution.

However, he thought prosecuting cases where people had entered into overseas commercial surrogacy arrangements in India may have difficulties, particularly for opposite sex couples if they are both names on the birth certificate.

For gay couples who used India, the sperm donor and surrogate would appear on the birth certificate, but in seeking a parenting order they would have to admit an arrangement was commercial to come to the attention of prosecutors.

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