Surrogacy Reform

5th December 2018 

Matters of Interest 

The Hon. J.S.L. DAWKINS (15:43): On 15 November, I was pleased to receive the South Australian Law Reform Institute’s report on surrogacy from its director, Professor John Williams, as well as co-authors Madeleine Thompson and David Plater. I was also delighted that on the same day the Attorney-General, the Hon. Vickie Chapman, tabled a draft stand-alone surrogacy bill that reflects the recommendations of the report in the House of Assembly. 

While this issue will remain a conscience issue for MPs, I am very grateful for the efforts of the Attorney and SALRI after well over a decade of driving legislative reform in this area as a private member. On the same day, Professor Williams provided me with a covering letter, which I will read in part: 

Further to our recent discussions, I am pleased to attach for your reference a copy of the South Australian Law Reform Institute’s…latest report, ‘Surrogacy: A Legislative Framework: A review of Part 2B of the Family Relationships Act 1975 (SA)’, which was publicly released today. 

This has proved a major reference into a complex and sensitive area of modern law and practice and SALRI has drawn on extensive research and consultation, building on the valuable work of yourself and others in this area. 

The Report makes a total of 69 recommendations. In summary, SALRI supports a suitable regulatory framework for South Australia that prohibits commercial surrogacy and maintains a distinction between commercial and non-commercial surrogacy. SALRI’s recommendations clarify and improve the current system to most appropriately allow and facilitate lawful domestic surrogacy for South Australians, but discourages and deters recourse to unlawful surrogacy, especially offshore commercial surrogacy. It is unrealistic, in light of the diversity of modern families and the dramatic advances in reproductive technology, to expect that the law can cover every conceivable surrogacy situation that might arise. Nevertheless, SALRI considers that the framework which it has recommended is the most effective and appropriate to recognise and respect the interests of all parties, but crucially to protect the best interests of a child born as a result of surrogacy. This must always be the primary or paramount factor of any scheme. 

I really do appreciate the work that SALRI has done on this. Many members in this place will know that I have been working on these issues since 2005 and that initial legislation in this place was well reviewed by the Social Development Committee of the day, led by the Hon. Mr Hunter. We finally got legislation through late in 2009, after significant delays in the other place. In 2015, I decided to bring in another bill in response to the Baby Gammy issues and issues relating to the suitability of some would-be commissioning parents, and also the issue of baby factories in some parts of the world. 

Unfortunately, despite the fact that that act, as it stands today, was agreed to in both places without division, the attorney of the day decided to take a very long time to get around to consulting on regulations and then did not agree with some parts of the act. I do acknowledge the Hon. Mr Hunter’s efforts in helping me to get a compromise bill up in this place last year, which was promised to go through the assembly but of course failed to do so in the last moments of the last parliament in that chamber. 

I encourage members of this place to have a look at the draft bill that has been brought in, accompanying the SALRI report. I think SALRI acknowledges that it is the first time that draft legislation has been presented to the parliament to coincide with the delivery of their report. I commend SALRI and the Attorney-General for the way in which this work has been done, and I am very happy to talk to members at any stage about the way in which we progress this legislation early in the new year.