Thai surrogate mother Pattaramon Chanbua holds her baby Gammy. Photo: AFP
The federal government's advisory council on family law has found that children born in overseas surrogacy arrangements are at risk of having "no secure legal relationship" to their Australian parents.
In a report to the Abbott government, the Family Law Council has recommended that Attorney-General George Brandis tasks the Law Reform Commission to conduct a further inquiry into the issues raised by international surrogacy and its impact on Commonwealth laws.
The report on parentage and the Family Law Act was commissioned by the former Labor government in 2012 and completed in December 2013, but its release coincides with the case of baby Gammy, where a West Australian couple are accused of abandoning their Down Syndrome son to his surrogate mother in Thailand.
Prime Minister Tony Abbott has played down the action his government can take in response to baby Gammy, noting that surrogacy is "traditionally" a state matter.
The 200-page report, released by Senator Brandis on Thursday, raises questions about what happens in some surrogacy cases, noting that there is a "growing number" of children born to Australian couples through overseas surrogacy each year. It says that the Family Law Act provision that was intended to govern the recognition of parents in surrogate situations "does not apply to these cases".
"Consequently, the children born as a result of these arrangements are at risk of having no secure legal relationship to the people who are raising them," it finds.
Among its 19 recommendations, the report says there should be minimum standards when dealing with the "transfer of parentage" in surrogacy cases where state and territory laws do not apply.
These include a provision for parties to change their minds, evidence of the surrogate mother's informed consent and whether the parents have acted in good faith towards the surrogate mother.
The Family Law Council also found that there is uncertainty about the parental status of known donors of genetic material in assisted reproductive cases, noting that when a single woman has a child through measures like IVF, the Family Law Act does not explicitly exclude the donor from being found to be a parent.
The report calls on the Coalition to introduce a federal Status of Children Act that would provide a "clear statement of parentage laws for the purposes of all the laws of the Commonwealth".
The Council, which is headed up by University of Melbourne law professor Helen Rhoades and also includes NSW Legal Aid executive director Kylie Beckhouse and Family Court judge Justice Robert Benjamin, also calls for a more inclusive definition of "parent" in the Family Law Act.
This should reflect "the empirical evidence of family diversity and children's perspectives of family".
In broadening the definition of "parent", the Council further recommends that the reference to "both" of a child's parents is removed from sections of the Family Law Act.
It also says that when "parent" is used in court parenting orders - that deal with issues such as where a child should live and how much time they should spend with a parent - "other significant adults" and "other people of significance to the child" should also be an option.
Senator Brandis said the government was considering the recommendations and would "respond in due course".
Shadow attorney-general Mark Dreyfus rounded on Senator Brandis for taking so long to release the report.
“The Attorney-General has chosen to publicly release this Family Law Council report eight months after receiving it," he said.
Mr Dreyfus said it was clear from the report that there is "significant legal uncertainty around overseas commercial surrogacy arrangements". He said Labor supported the government clarifying the law in this area.