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22.11.2018

South Australian bill intends to eliminate discrimination in surrogate motherhood

The draft surrogate motherhood law, presented in Adelaide last week to the public’s attention for wide discussion, calls for extending the legal right to surrogate motherhood for single people as recommended by the  South Australian Law Reform Institute (SALRI) and the Commissioner for Equal Opportunities SA.

In accordance with the current legislation of South Australia, surrogacy is now allowed only for parents who either legally enter into marriage, or are in a registered relationship, or permanently live together in a marriage relationship for three years.

However, the State Surrogacy Act itself, as noted in the Report prepared in connection with the introduction of the new bill, discriminates in a discriminatory manner lonely people from among those granted the right to use such services.

“The present restriction for a specific category of persons applying to legal services of surrogate motherhood is unreasonable and should be removed,” the Report says.

SALRI could not find any convincing reason for denying this right and noted that this restriction appears to be discriminatory and contrary to the approach of other Australian jurisdictions.

South Australia is one of two jurisdictions on the mainland where the status of a relationship may affect the ability of people in need to access surrogate motherhood services (another administrative entity is the Australian Capital Territory).

The SALRI report contains testimonials from two single people who tried to access surrogate motherhood in South Australia.

In one example of the study, the story of a person whose wife was diagnosed with end-stage breast cancer was described. The couple wanted to start a family and agreed with the surrogate mother about the birth of their child, but his wife died before becoming pregnant. Since the surviving partner was now classified as a “loner,” he was recognized as legally incapable of continuing the surrogacy agreement. “J” (conditional name of a person) indicates double standards, which consist in the fact that if he, and not his wife, died, she would be able to get access to his genetic material and continue to build a family, and he is deprived of this right.

Another example concerns a woman with a congenital absence of the womb, who was denied access to surrogate motherhood services in South Australia because she does not have a partner.

Co-author of the report, Madeleine Thompson, said that in the process of preparing the document, she had to witness very emotional statements from lonely people who wanted to get legal access to surrogate motherhood in South Australia.

“We really wanted to emphasize that there are some real situations where single people need surrogate motherhood for a variety of reasons,” says Madeleine. “We heard from surrogate mothers about their deep desire to help childless families. Own and sometimes painful experiences of people helped us focus on the impact of the current law on people who need help from surrogate mothers. Lonely people referring to surrogate mothers may seem to be an abstraction to someone, but these are real people, and this is their reality.”

According to the authors of the bill, South Australia is lagging behind the rest of Australia in reforming the surrogate motherhood law, not to mention other states that have already amended their legislation quite timely.

South Australian Equal Opportunities Commissioner Niki Vincent, who advised SALRI in preparing the report, agrees that the current law, excluding individuals from the institute of surrogate motherhood, is discriminatory. She said she welcomed the change in legislation and would reiterate her position in consultation with the government.

South Australian Attorney General Vickie Chapman stressed that the information provided by SALRI covers many ethical, legal and complex social issues related to surrogate motherhood. And it is true that such a report was used to inform the government about the draft law being prepared.

The draft regulatory document, which involves making changes and additions to it after discussion in society, states that the surrogate parents of a child may be “one or several persons”.

He also proposes raising the legal age for surrogate mothers and prospective parents from 18 to 25 years.

SALRI recommended changing the extremely low age, stating that other Australian jurisdictions applied a higher age limit on the grounds that intending parents must have a certain degree of maturity necessary to understand and be aware of the serious consequences to which surrogate motherhood agreement leads.

In accordance with the proposed changes, people intending to conclude an agreement on surrogate motherhood must be Australian citizens or have the status of a permanent residence permit.

Commercial surrogacy in South Australia continues to be illegal, while the draft law provides for a maximum sentence of imprisonment of up to two years for persons found to violate the law.

Based on InDaily

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