This article was produced by the Commission and appeared in the July 2007 issue of the Law Institute Journal.
The Victorian Law Reform Commission has released its long-awaited final report on assisted reproductive technology (ART) and adoption, recommending safeguards on who can access treatment and processes to recognise parents in surrogacy arrangements and same-sex couples.
The Victorian Law Reform Commission has made more than 130 recommendations in its Assisted Reproductive Technology and Adoption: Final Report to ensure the best interests of children are upheld by state law.
The recommendations aim to remove inconsistencies and invalid provisions in the Infertility Treatment Act, which governs the provision of assisted reproductive treatment, and provide clarification of parental status.
The Commission recommends a name change for the legislation, from the Infertility Treatment Act to the Assisted Reproductive Technology Act, and amendments to the Act’s guiding principles, placing the best interests of the child at the centre of decision making.
The mix of principles and establishment of review and ethics committees will give the Act a flexibility it currently lacks, enabling it to cope with unexpected turns in treatment and social change.
The Commission drew on an extensive body of social science research that has found that it is the quality of parenting that most affects children’s wellbeing and outcomes rather than family structure.
In the 2000 McBain case, the Federal Court declared invalid the requirement that a woman be married in order to undergo treatment because it was inconsistent with the federal Sex Discrimination Act. In light of this decision, the Commission is recommending the marital status requirement be removed from the Act, and that people seeking ART not be discriminated against on the basis of marital status, religion, race or sexuality.
Instead, access to assisted reproduction will be determined according to the ability of a woman to become pregnant or the likelihood of her passing on a genetic disease. Not having a male partner would be a sufficient reason for a woman’s inability to become pregnant.
The only people who could be barred from treatment are those who have past convictions for serious sexual or violent offences, who have had children taken from their care, or who are assessed by counsellors as posing a potential risk to children. Any people falling into these categories, however, would have the right to have their case reviewed by an expert panel.
Surrogacy is not illegal in Victoria, but the Infertility Treatment Act makes it virtually impossible for people to undertake surrogacy arrangements in this state. This is because a surrogate mother and her partner (if she has one) must be infertile if the commissioning parents wish to contribute their own embryo. The Commission concluded that if surrogacy is to continue to be legal in Victoria, this anomaly needs to be corrected, and surrogacy should be carefully regulated to protect all parties. Eligibility for fertility treatment should apply to the people commissioning a surrogacy arrangement and not the surrogate mother and her partner, if she has one.
Another major impact on children born through ART is the failure of the law to recognise the people who care for them as parents. This affects children who have been born through surrogacy arrangements or to same-sex couples.
Non-recognition of parents has a range of practical and social implications. If a person is not recognised as a child’s legal parent, he or she is unable to give permission for medical treatment, educational activities or the issue of a passport. In the long term it can cause problems if a couple breaks up or when one parent dies because children do not have automatic rights to child maintenance payments or inheritance from the non-legally recognised parent.
The Commission has recommended that where a child is born to a lesbian couple, the non-birth mother should be presumed to be a parent of the child if she has consented to her partner becoming pregnant, and should be recorded as a parent on the child’s birth certificate.
People who commission a surrogacy arrangement should be able to apply to a court for a transfer of parentage once the child is born. If the court and surrogate mother agree, then the commissioning couple can be recognised on the birth certificate as the child’s parents.
The Commission has also recommended Victoria work towards national law reform for the recognition of parents to remedy the problems that exist under federal law.
The report stresses that it is crucial for parents to tell children conceived with donated sperm, ova and embryos about their genetic origins. Victoria already has registers of donors, but parents need more support and resources to ensure children are able to exercise their rights to access information on the registers.
While these recommendations address the main problems thrown up by the current legislation, there are many other recommendations that detail changes to process and procedures and address less common problems.