It has been suggested that ‘technically’ commercial surrogacy could occur in the Northern Territory in relation to ‘traditional surrogacy’ arrangements.
Such suggestions appear to relate to the [hypothetical] situation in which a man could pay a woman to have sexual intercourse with him with the intention that she become pregnant and then hand over the child to him at birth. This would be done on the basis that he would be recognised as the ‘legal father’ of the said child under the Status of Children Act (NT), and that there are no explicit laws prohibiting commercial surrogacy.
However, stating that such a situation would be ‘technically’ lawful ignores the legal complexities of the matter. For example,
- if the birth mother was married or in a defacto relationship, her partner would be presumed to be the legal parent of the child, and the presumption would have to be rebutted in a Court;
- even if/when the paternity of the child is established, the birth mother would continue to be the legal mother of the child, and would continue to have legal rights and responsibilities regarding the child. For example:
- if the child resided with the legal father, he could claim child support from her;
- or, if the mother decided not to relinquish the child, and it continues to reside with her, she could claim child support from the legal father; and/or
- family law proceedings could be taken by the birth mother or father claiming rights of visitation or residence orders in relation to the child.
- if hypothetically, the man has a partner, and the intention was that the birth mother relinquish the child and the partner of the father would adopt the child, all parties would be in breach of the Adoption of Children Act NT, which prohibits payment or reward for, or in consideration of, the adoption of a child – either before or after its birth.
There are also questions about whether such an arrangement would amount to the ‘sale of a child’ under Australia’s international law obligations. For example, in its last report to the the United Nation’s Human Rights Committee, the Commonwealth Attorney General’s Department listed prohibitions of commercial surrogacy in other states as meeting our obligations under international law to prevent the sale and trafficking of children. This could imply the view that when commercial surrogacy occurs, in whatever form, it is in breach of Australia’s obligations under international law.
It is suggested therefore that, at the very least, it is precarious to interpret or suggest that the position in the Northern Territory is one that lawfully allows commercial surrogacy, or one in which ‘technically’ commercial surrogacy may occur. Such a view might lead people into arrangements that are fraught with legal difficulties, and may impact upon women and children (as well as commissioning person(s)) negatively.
People should always seek independent legal advice to determine not only what is or is not lawful, but what the legal impacts and ramifications of certain actions may be.