Two mums, one dad and a baby
For the state government, proposed surrogacy laws form the last leg of a trinity of controversial social issues to be pushed through Parliament before an expected change of government at the March election. Laws covering same-sex adoption and the Kings Cross injecting room have already been passed. Now legislation to approve altruistic surrogacy is before the Parliament.
A parliamentary inquiry that looked into the subject a few years ago was hit hard by lobbying from religious groups who were opposed to the door being opened to surrogacy at all, with submissions and a number of groups arguing their case in public hearings. But for the medical profession, the case is clearer cut.
''You have a couple with a desperate need in front of you, and the only other way to redress it is to take the commercial alternative in the US, which I don't think is appropriate,'' says Associate Professor Mark Bowman, the medical director of the Sydney IVF Clinic, which is the largest provider of such procedures in NSW.
Despite the emotional heat generated by the issue - in large part due to concerns over commercial surrogacy, which is banned - the number of cases that take place in NSW each year is minute. About 10 in all, they make up about a third of the estimated 30 surrogate pregnancies that take place annually in Australia.
Bowman says Sydney IVF would have one case a month where people came in to discuss surrogacy, but not all went ahead with it.
The NSW legislation will bring clinics offering surrogacy services into line with those operating in the ACT such as the Canberra Fertility Clinic, which benefits from surrogacy laws already being on the books.
Most women seeking surrogate arrangements are either unable to carry a child because their uterus has been removed to treat cancer or other serious medical conditions, or because they cannot carry a child full term or cannot fall pregnant.
For the Canberra Fertility Clinic, these make up about 70 per cent of cases, says Dr Christopher Copeland, the clinic's scientific director.
The next largest group are women who have unsuccessfully tried in-vitro fertilisation, followed by women with heart - and some kidney - conditions for whom pregnancy is a grave risk.
''We probably see about 10 cases a year, and that represents the entirety of Australia,'' says Copeland. People who are ineligible in their home state travel to the ACT for treatment.
A condition imposed by the clinics is that the surrogate mother must have an ongoing relationship with the intended parents of the child.
''It is about ensuring that the woman carrying the baby knows it is not hers,'' says Copeland. ''It avoids a lot of the problems seen in the US with no link between the two.
''Another woman is carrying another woman's baby, so if any health issues and the like arise, it is more straightforward if the birth mother is part of the same family group.''
Bowman says: ''If you found someone on the internet, we would doubt the strength of the relationship.''
Unlike the debates over same-sex adoption and the Kings Cross injecting room, where emotions ran high with large numbers of MPs wanting to have their say and religious groups lobbying MPs intensely, surrogacy so far has been more subdued. Both the government and the opposition have allowed a conscience vote on the matter.
Under the Surrogacy Bill 2010, parents of children born through surrogacy are to be given full legal recognition of their parentage for the first time. Couples also will be able to enter into surrogacy arrangements abroad.
Applications can be lodged with the Supreme Court for parentage orders from between 30 days and six months after the child's birth. The legislation bans commercial surrogacy and associated advertising, although it does allow all costs of the birth mother to be paid for by the intended parents.
Both the birth mother and the intended parents must undergo counselling and receive legal advice before they can apply to the courts for a parentage order.
The parliamentary inquiry last year recommended that surrogacy legislation be introduced to strengthen the legal position of intending parents. At present, intending parents must apply to adopt the child or seek parental responsibility orders from the Family Court, which are not permanent and do not apply once the child reaches adulthood.
De facto and same-sex couples will be able to apply for parentage orders, too.
The main hurdle in the legislation is that the court must be satisfied that the birth mother as well as the intended parents have received legal advice and counselling and have given their informed consent before parentage orders are issued.
''Currently NSW does not have stand-alone surrogacy laws,'' said the Premier, Kristina Keneally. ''This means that people who enter into surrogacy arrangements because they are unable to have children face difficulty in gaining legal parentage of their children.
''This legislation is about making it easier for couples with children born through surrogacy arrangements to gain full recognition as parents so that they do not face obstacles when they seek to do the things we often take for granted, like enrol their child in school, obtain a passport, or make decisions about their child's health."
The Opposition Leader, Barry O'Farrell, has not indicated his view. A spokesman said he would not signal his position until he addressed Parliament, for fear of swaying the vote of opposition MPs.
Somewhat unusually, the law will apply retrospectively to parents who are lawfully raising children under the age of 18 if the court is satisfied that the arrangement was entered into before conception, is not a commercial arrangement and all parties consent to granting the order.
Sandra Dill, the chief executive of Access Australia, says: ''It's the end of a sheer battle to get it up. We spoke to the attorney-general in 2004 about this, and it is exciting to see it come up.''
There have been no known cases of birth disability in a surrogate child, which may test the strength of the agreement reached between the birth mother and the intending parents.
''It's a matter of when,'' says Copeland. ''It is a little surprising there have been no issues so far.''
Varied stances on surrogacy
Sort of happy
''The NSW Gay and Lesbian rights lobby welcomes the introduction of the Surrogacy Bill 2010 … to allow children born through altruistic surrogacy arrangements to have their intended parent/s legally recognised. While it is pleasing that some overseas arrangements will be recognised, all transfer of parentage issued by foreign jurisdictions should be recognised in NSW in order to protect the best interests of surrogate children.''
Rathana Chea, GLRL co-convener
"While surrogacy happens and needs to be regulated, this bill encourages it. The bill sets up an alternative process to adoption to make it 'more convenient' for the intended parents. [The] wishes of adults are placed above the welfare of children and their right to experience the love and care of both a father and a mother as far as possible.''
Catholic Archdiocese of Sydney
Really not happy
"The Australian Christian Lobby does not support surrogacy at all. We believe that governments should be concerned about the genetic bewilderment and relational and legal consequences of surrogacy even where married heterosexual couples are involved.''
David Hutt, NSW director, ACL
Rules and regulations
Must live in NSW. Brings NSW into line with Victoria, the ACT, Western Australia and Queensland.
No restriction on method in NSW, in line with Qld, WA. Conception by sexual intercourse banned in ACT, Vic and South Australia.
No restriction in NSW, Qld, Vic. Varying restrictions on same-sex couples and single people in ACT, SA and WA.
Both medical and social reasons accepted; NSW in line with Qld. Single male and male same-sex couples automatically meet criteria. A woman must be able to demonstrate she is unable to conceive, or has other medical grounds which make pregnancy problematic. Various restrictions in other states and the ACT.
Genetic connection to child
No restriction in NSW, in line with Qld, WA and Vic. At least one parent must be genetically related in SA and ACT.
No explicit restrictions; can obtain a parenting order but only if the surrogacy is not commercial. Will not be able to get a new birth certificate. NSW in line with Qld, SA.
Birth mother's expenses must be verifiable. Includes medical, legal, counselling, lost wages, travel, accommodation. Brings NSW into line with Qld, WA.
Australia-wide ban on commercial surrogacy.
Advertising and brokerage
Extend existing ban to include paid advertising for altruistic surrogacy arrangements. NSW in line with Qld, SA, Vic, Act.