When mum is nana
Caroline Overington and Michael Pelly | August 12, 2009
AS a nation, we can't be sure when the first surrogate baby was born. The practice was for so long illegal, nobody talked about it.
We do know that one of the first people willing to admit that she'd had a baby using a surrogate was Maggie Kirkman, who had no womb, so her sister, Linda, offered to carry a child for her, using an egg from Maggie and donor sperm.
The child, Alice, was born in 1988. She has just turned 21. Alice was never told any nonsense about her birth; she has always known that she started as an egg, inside her mum, Maggie, and grew inside Linda because Maggie didn't have the "special nest" that babies needed.
According to their joint biography, when Alice was three and other children were telling their birth stories at kindergarten, Alice told her story. The class accepted it without question. But, then, they were kindergartners.
Ask a parliament to decide who is the mother and who is the father in a surrogacy situation, and you will almost certainly get a different answer.
That's what happened in NSW last week when a couple went to the Family Court, hoping to be recognised as the legal parents of their own, biological son, Michael.
As reported in The Australian yesterday, it took three people to make Michael. One woman, known as Sharon, provided the egg; her partner, Paul, provided the sperm; another woman -- Sharon's mother, Lauren -- provided the womb because Sharon's had been removed. On the face of it, there was nothing particularly unusual about the arrangement. Donor sperm, donor eggs, surrogate mothers; we've surely heard it all before.
The twist came when the three adults went to court to sort out Michael's birth certificate. They wanted Sharon to be listed as the mother and Paul as the father. Lauren, who sees herself as the grandmother, had no problem with that.
But judge Garry Watts couldn't do what was sensible and make Sharon and Paul the parents of their own child. He had to decide who the parents were on the basis of existing law and, 21 years after the birth of Alice Kirkman, there is no surrogacy law in NSW.
The judge therefore had to be guided by the Family Law Act, which makes it plain that a woman who gives birth to baby is that child's mother, regardless of whether she uses donor eggs or not. In other words, Lauren was Michael's mother and Sharon was, legally speaking, his stepsister since they were born of the same mother.
Who, then, is Michael's father? The kindergartners would probably tell you that it's Paul, since he provided the sperm, and he's been rearing the boy since he was born. To the surprise of everyone, the judge included, Paul was not the father, not legally, anyway. The father is a fourth adult, one who has no biological connection to Michael. It is Michael's grandmother's de facto partner, a man known only as Clive. That's because the law assumes that any woman who gives birth to a child using donor sperm, as Lauren has done, is the mother and that her partner, de facto or married, is the child's father.
On one hand, it's amusing to think of the expression on Clive's face when Watts informed him that he was the legal father of a two-year-old boy, born to a woman who is the daughter of his present partner, and to whom he has no genetic connection.
But the case, which made headlines across the world yesterday, highlights the problems of surrogacy law in Australia. All states and territories ban commercial surrogacy (where the birth mother receives a fee for carrying the child). All also seem to agree that the woman who gives birth is the child's mother.
Anita Stuhmcke, of the University of Technology, Sydney, who has studied surrogacy law for 15 years, says that is "because she is the one who carries the baby; she is the one who gives birth and must decide to enter into the agreement in the first place. So biology is the less important, absolutely."
In their book, the Kirkmans say they hold "strongly to the view that no woman should ever be forced to relinquish a baby who's grown inside her body, regardless of the baby's genetic origins".
What is needed is a simple law that would enable the birth mother to transfer parentage to the couple who organised the surrogacy or donated the eggs and sperm, within the first three months of life. It sounds simple but, for a long time, nobody was prepared to act.
Then, in 2006, Labor senator Stephen Conroy's daughter Isabella was born. Conroy and his wife, Paula Benson, are from Victoria, but since surrogacy is essentially illegal there, they travelled to NSW to enter an agreement with a surrogate in Sydney.
The absence of any legislation in NSW worked in their favour. It meant anyone could enter a surrogacy arrangement. The couple returned to Victoria with their baby and spent $50,000 formally adopting her.
Victoria, Western Australia and the ACT subsequently changed their laws to make it possible for the birth mother to easily transfer parentage to the donor couple. NSW reviewed its law but didn't move. Tasmania did the same. In November 2006, then federal attorney-general Philip Ruddock urged a national approach and put the issue on the agenda of the Standing Committee of Attorneys-General.
"In a federation like Australia, it is not satisfactory that people are forced to effectively forum-shop for the best deal," Ruddock said at the time.
But there has been little progress.
WA initially had carriage of the project but it was eventually left to NSW to develop a consultation paper, which was distributed ahead of the SCAG meeting in April, 2 1/2 years after Ruddock raised the issue.
It says there should be no commercial surrogacy but that surrogate mothers could be reimbursed for expenses such as medical treatment and lost wages. It favours the WA law, under which the surrogacy agreement must be in writing and is dependent on each party receiving independent legal advice.
The intended parents would not be able to sue the surrogate mother if she decided not to relinquish the child after birth. And they could not compel a surrogate to terminate the foetus if tests disclosed an abnormality.
Parenting orders would be left to the discretion of state courts because parentage is a subject of state jurisdiction.
Once an adoption was approved, the child would be issued with a new birth certificate recording the intended parents. The original, which listed the birth mother, would remain on file and on reaching a certain age the child would be able to access both.
South Australia and Queensland do not recognise same-sex partners as the legal parents of a child. And NSW does not allow adoption by a same-sex couple.
When the matter was discussed at the April SCAG meeting, the ministers resolved to develop a unified framework and ask public servants to work on an agreement.
At the most recent meeting -- in Alice Springs last week -- the lack of progress was all too obvious when control of the issue was moved to the National Justice Chief Executive Officer Group. Laurie Glanfield, who is secretary of SCAG as well as director-general of the NSW Attorney-General's Department, says the chief executives will "see what is achievable". "What the ministers have asked is for the CEOs to take responsibility," he says. "We have to get a consistent approach. It's been a struggle to pull it all together."
Glanfield says the chief executives will report back to the next meeting, but adds the issue is complicated by the fact the laws governing assisted reproductive technology differ across Australia.
Meanwhile, Queensland continues to ban altruistic surrogacy (where a woman agrees to carry a child for a sister, her own daughter or a friend, as an act of kindness).
Victoria, by comparison, allows the donor couple to pay a fee to the surrogate, to cover the cost of items such as maternity clothing, taking vitamins and transportation to the hospital, but the legislation doesn't mention a dollar figure.
NSW Attorney-General John Hatzistergos says he may not wait for a national model before pursuing legislative change.
With the laws as confusing as they are, many couples go overseas. They bring the children back to Australia and essentially dare the local courts to take the baby away from them. In almost all cases, the courts won't do it. They grant parenting orders.
"So, in refusing to have the discussion here, in refusing to have national guidelines and clear rules, we ignore the reality of the global marketplace," Stuhmcke says. "By saying 'You can't do it in our country,' (it) is pushing it overseas.
"If there was a national debate, I think politicians would be surprised. Our understanding of infertility in the last 30 years has shifted. It used to be God's law and it affected a minority of people, and you either accepted the fact or you adopted.
"Infertility today is an epidemic. It affects one in six couples. It causes medical, social, emotional harm, and every person would know at least one person who has been through 10 IVF cycles, or 14 IVF cycles, and for them surrogacy may be the accepted path."
But who will the surrogates be? The fear is always that the burden of carrying the babies will fall on the poor. "That is an argument," Stuhmcke says. "But if we don't do it here, wepush it on to poor women in India, and that's irresponsible."
Last month in New Delhi, a law reform commission, headed by A.L. Lakshmanan, noted the "comparative cost advantage in India had made it a favourable destination for foreign couples and a whole branch of medical tourism had flourished on the surrogate practice".
"It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers," the report says.
Surrogacy costs about $12,000 in India, including all medical expenses and the surrogate's fee. A similar arrangement with a US surrogate could cost $100,000.
At last count I personally knew of 150 Australian couples actively pursuing surrogacy in India. The reason couples go abroad for surrogacy is because commercially it is not allowed in Australia. To go to the USA costs just shy of $200,000, if nothing goes wrong, not $100,000. In India the prices are much lower, but a couple can expect to pay at least $50,000 including airfares, accommodation, fees in India ... IF nothing goes wrong.
"But I'd argue that simply because an arrangement is commercial, it doesn't mean it's exploitation," Stuhmcke says. "And just because an arrangement isn't commercial doesn't mean somebody isn't being exploited. You can imagine the pressure in families if one person cannot have a child. There is pressure from daughters on their mothers and between sisters. I'm not sure that simply because we call it altruistic surrogacy means it's all loving and there is no exploitation. But, then, it's taken me 20 years to get to that position, so I can see why the debate is taking a while."