Page 1730 - Week 06 - Thursday, 19 May 1994
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The Bill is called the Substitute Parent Agreements Bill 1994, and I will also be tabling the Substitute Parent Agreements (Consequential Amendments) Bill 1994 to make necessary amendments to other legislation in relation to this Bill. The name of the Bill and the agreements it covers have been changed for two reasons. The first reason is that the term "surrogacy", which is based on the concept of the birth mother being a surrogate mother, is a misnomer as the woman giving birth is legally, as well as gestationally, the mother of the child. The second reason is to indicate clearly that we are talking about an agreement to substitute one set of parents for another, thus bringing into focus the issues of the legal parenthood of the child concerned, the welfare of that child, and the use that is made of the very real physical and emotional relationship that a woman has with the child to whom she gives birth.
There is no doubt about the distress and loss felt by those who cannot conceive a child. The Government recognises that resources should be applied to the development of means for preventing and curing infertility. However, substitute parent agreements are neither a treatment of nor a cure for infertility. They are a means of supplying someone with a child in a way that involves substantial impingement on the lives of others. We believe that substitute parent agreements thus raise serious matters and that these agreements should not be endorsed by the Government.
The Bill, therefore, is based on the Government's belief that substitute parent agreements should not be enforceable at law; commercial agreements should be illegal; it should be illegal to advertise in relation to substitute parent agreements, to procure a person to enter into an agreement with a third person, and to facilitate pregnancy for the purposes of an agreement. In any action relating to the Bill, the law would give paramount consideration to the welfare of the child involved.
Non-commercial substitute parent agreements, sometimes called altruistic surrogacy, is the term used to describe the situation where there is no formal contract or any special payment or fee to the birth mother. It is usually an arrangement between very close friends or family members. Commercial substitute parent agreements are businesslike transactions where a fee or other sort of reward is to be given for the gestation service above and beyond the expenses of gestating and bearing the child and surrendering him or her at birth. There is usually a formal agreement which settles the financial arrangements, for example, as to periodic payments for ancillary expenses.
The agreement often stipulates behaviour the birth mother agrees to undertake, such as undergoing tests, or having an abortion if the foetus is defective, or behaviour that she agrees to avoid, such as smoking and drinking. The commissioning couple and the birth mother are very often strangers to each other and usually continue to be so. In some cases, they never meet at all. Either sort of arrangement is similar to all commercial agreements for the production of goods, with the sole concern being the state of the goods which are to change hands. The child is the commodity which, for a price, is exchanged. The difference is that commercial agreements involve making a business and a profit out of the perceived needs of others.
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