Historically, having children was seen as the natural ‘outcome’ of marriage. However, with such rapid technological and social change, children are no longer seen to be ‘natural’ products of marital reproduction.
The NSW Government has introduced legislation to ensure the legal recognition of parents who conceive through altruistic surrogacy.
Legislation regulating surrogacy was first introduced in NSW in 2007 with the Assisted Reproductive Technology Act.
While permitting altruistic surrogacy, the legislation lacked any mechanism to transfer parentage from a consenting birth mother (and her partner if any) to the intending parent(s).
No mechanism exists to recognise the parentage of surrogate parents, even with the consent of the birth mother and if the child lives with the surrogate parent(s).
The Bill resolves this parenting conundrum by including a transfer of parentage scheme. This will ensure children born through altruistic surrogacy are able to access all the protections conferred with legal recognition.
The legislation also includes social infertility alongside medical infertility as a valid reason for accessing surrogacy. Such provisions recognise the unique position of same-sex couples.
Commercial surrogacy remains prohibited. Concerns over the exploitation of female reproductive labour and the commercialisation of conception have limited the scope for compensating surrogate mothers.
However, this means the Bill doesn’t adequately protect all children, as engaging in commercial surrogacy precludes the possibility of a parentage order.
The Bill clearly specifies the ‘reasonable expenses’ that can be paid to the birth mother soparents can avoid a commercial agreement, which is a criminal offence.
With the expansion of reproductive choices and family structures, the law must be flexible enough to ensure the recognition of children, regardless how they were conceived.
In order to do so, the law must shift beyond a nuclear model of ‘natural’ parenting and consider the many children living in diverse family units.