birth technology in australia

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Birth technologies and surrogacy have caused much controversy since their evolution into mainstream society, about 0 years ago.


Birth technologies is the term used to describe the range of medical treatments available to assist a couple to conceive. Current treatments for infertility include, artificial insemination, fertility drugs and assisted reproductive technologies, known as ART.


Another common choice for couples that are unable to conceive is surrogacy, this is where a women agrees to become pregnant and bear a child on behalf of another couple and when the child is born be given to the couple for adoption. The surrogate mother may use the sperm and or the ova of the childless couple, through such procedures as IVF.


Law in the area of birth technologies is a matter for state governments in Australia though many argue that there should be uniform laws across Australia.


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In 188 the National Bioethics Consultative Committee was set up to advise state and federal governments about such technology. The Artificial Conception Act 184 was passed in NSW, to deal with some of the legal problems that had arisen from these new technologies.


This act is the only one in NSW, which addresses these issues, and it is out dated and not very comprehensive. It is suggested that new ART laws be introduced into NSW, but this has not yet been addressed.


As a result of this limited legislative control, many of the issues that arise in relation to ART are dealt with by ethics committees, which are attached to each IVF clinic in NSW.


Such legal and moral issues that arise include, but are not limited to.


Who are the child’s legal parents? If the sperm or ova or both have been donated to the couple the question arises as to who is the subsequent child’s legal father and mother. The Status Of The Child Act 16 NSW states that the social father, or the man that acts as a father of the child, is the legal father. The sperm donor is not the legal father of the child unless he acts as the social father of the child as well. The legal mother of the child is considered to be the woman who bears it.


Is It Moral? Some people argue that it is immoral for children to be conceived in this manner. Suggesting that natural processes, such as conception, should be left to nature. Others believe that childless couples should be allowed to have children in this way.


Should women be allowed to have the child of their dead partner using ART procedures? In Australia the national health and medical research council guidelines state that it is unacceptable to use egg, sperm, or embryo harvested from dead people. In Victoria the use of sperm or egg after the death of the owner is illegal. In NSW it would be legally possible to inseminate a women with her husbands sperm after he had dies if there was no indication that the husband had been or his family were against it.


Surrogacy is slightly less controversial then birth technologies. Under the artificial conception act 184 NSW it is illegal to bear children for money, however there is no law to prevent surrogacy arrangements taking place where no money changes hands. Again the issue arises as to who the legal parents are. Like birth technologies the legal father is considered the social father, while the legal mother is considered the women who bears the child.


Problems can arise when the surrogate mother may decide she is unable to give up the child and regardless of whose sperm and ova were used, the law reform commission in 188 recommended that in a dispute over the parenting of a child born under surrogacy, the court should rule in favour of the surrogate mother. Due to the fact that she is seen as the natural mother because she gave birth to the child and the legal mother according to the status of the children act 16 NSW, the family law act 175 (Cth) and marriage Act 161 (Cth).


To try to over come this, some have used surrogacy contracts, in NSW and most states in Australia surrogacy contracts are still made privately and are not enforceable by law. This was tested in a family court custody battle concerning surrogacy in 18. The full bench of the family court found that the surrogate baby of the couple know as Q should be returned to its birth/surrogate mother, the couple know as S. the high court upheld this decision, this was the first decision involving a surrogate child to be made by the family court, it set a precedent of giving more birth right to the birth mother and deciding against surrogacy contracts.


In march 11 state and federal ministers of health and social welfare agreed to standardise laws across Australia regarding surrogacy. These laws would mean it would be illegal to give or receive payment in relation to surrogacy, or to advertise or publish an advertisement, which seeks or offers the services of a surrogate mother.


While several states have passed legislation in accordance with this agreement, NSW has not yet done so.


Not all people have the same rights to birth technologies. Surrogacy is also limited in access as, in a majority of cases uses ART procedures.


Factors that can or do limit access to ART procedures include.


Cost. The cost of birth technologies, are very high and some people believe that our limited health budget would be better spent elsewhere. It is also argued that making such technology available only to those that can afford it means that it becomes a privilege for only the wealthy and that it could also be more difficult for governments to control. In Australia each ART procedure costs around $6000 with $000 of that being paid for by Medicare.


Age. In NSW there is no official age limit on women wishing to use ART but the unofficial age limit set by the ethics committee is about 50.


Family Arrangements. Originally ART was only available to infertile married couples. In NSW ART ethics committees generally allow the treatment of heterosexual couples in long term de facto relationships, as Victorian de facto couples did not have access to ART procedures they would often travel to NSW to make use of the technology, however in March 17 the Human Rights And Equal Opportunity Commission (Cth) found that three women who had been denied access to ART in Victoria because they were not married, were discriminated against and awarded $0 000 in damages. Victoria has consequently announced a review of its guidelines for IVF eligibility.





Generally lesbian women in NSW do not have access to public sperm banks if they are not infertile. The rights of lesbians gaining access to sperm banks has become and issue concerning ART. Although this has not been tested in NSW it is likely that denying lesbians access to fertility services would be illegal under NSWs anti-discrimination laws.


recomendations reguarding birth technology and surrogacy include.


the artificial conception act does not deal with children conceived with donated ova, the law reform commission has recommended that ‘the women who gives birth to a child using donated ova should be recognised as the legal mother of the child’. While no reforms have been made reguarding this in the artificial conception act, it has been addressed in the status of the children act.


There is currently no legislation in NSW covering the rights of the donor, the NSW law reform commission has recommended that ‘the donors should have the power to decide how their sperm or ova will be used, and that the child conceived with donated sperm or ova should be given the right to non identifying information about the donor’. This recomendation has not yet been implemented into legislation.


Laws on ART and surrogacy are inconsistent across state jurisdictions and there is no avenue for federal control of these laws due to constitutional limitations. While all these options have increased the range of prospects for couples or single women to have children, they have created inconsistency and indecision within the legal status of children and those involved in these procedures. Only with greater uniform or consistent legislation by governments can these legal complications be reduced.





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