Dr. Lydia Bracken:

The Senator's question was on the pre-conception model of parentage and why I believe that is the most appropriate way forward. Chapter 6 of the book the Senator mentioned focuses on domestic surrogacy. I support a pre-conception allocation of parentage in the context of domestic surrogacy. However, in the context of international surrogacy, a post-birth transfer of parentage is probably most appropriate. I can talk about that later if that is of interest.

The pre-conception approach to domestic surrogacy is the best way forward because it balances the rights of everyone. A post-birth transfer of parentage in a domestic context means that when a child is born, the intending parents do not have the legal rights and responsibilities that they need to care for the child, despite the fact that they will take physical care of the child very soon after the birth. Instead, typically, the surrogate mother is regarded as the legal mother upon the birth of the child which means she has the rights and responsibilities for making all of the decisions for that child until the time a parental order is made. This is the proposed way that parentage would be transferred in the Health (Assisted Human Reproduction) Bill 2022. It means that if the child needs medical treatment very soon after birth, the surrogate would probably need to consent to that rather than the intending parents. That can place the surrogate in the very uncomfortable position of having to make this kind of legal decision on behalf of the child. The Health (Assisted Human Reproduction) Bill 2022 proposed there would be a transfer of guardianship to the intending parents by way of a statutory declaration with the surrogate after the birth of the child. That can alleviate some of those difficulties but it seems there would still be a delay in terms of the intending parents getting the legal rights and responsibilities they need to undertake the caring role.

It also creates difficulties for the surrogate by being regarded as the legal parent. Perhaps it places her in a vulnerable position.

Under the 2017 general scheme, it was possible for either a surrogate or the intending parents to make the application for the parental order, which would ultimately transfer parentage to the intending parents. Under the 2022 Bill, only the intending parents can make that application, which is unusual because in the rare situation where the intending parents fail to make the application, the surrogate seems to have no recourse other than placing the child for adoption. For all those reasons, a model that allocates parental responsibilities based on the intentions of everyone involved, which is that the intended parents will raise the child, and having that become effective at the time the child is born balances the rights of everyone in the way I mentioned. It ensures the child is legally integrated into their family from the moment of birth, that the intending parents have all the legal tools they need to undertake the caring role and that, at a time when they are busy caring for their newborn baby, they do not have to go back to court in order to facilitate the transfer of parentage. In that way it balances the rights of all participants, in the domestic context at least.