Contemporary Issues of Care and Protection of Children and Surrogacy in the Australian Legal System

The contemporary issues of care and protection of children and surrogacy in the Australian legal system have led to the establishment of both legal and non-legal mechanisms in response to this matter. Many families and its members go through depraving situations sometimes together and sometimes on their own as individuals. These issues are what the law aims to demonstrate its effectiveness in as a source of aid as well as protecting individuals’ rights however there are many factors, legislation and unexpected mishaps that occur and prove the law to be quite inefficient in tackling such issues. There are legal instruments used to aid and/or combat care and protection of children and surrogacy in the Australian legal system which includes the courts, legislation and legal organizations, however there are people who have their own opinions, and many of those feel the need to voice their own as they may believe its importance is too much to keep quiet about. As a result, many non-legal mechanisms have also been established to aid and/or combat the care and protection of children and surrogacy including namely; Surrogacy Australia, the media, NGO’s and lobby groups.

Currently, commercial surrogacy is illegal in NSW under the Assisted Reproductive Technology Act 2007 (NSW). The costs of Assisted Reproductive Technology are quite high at $55,000 – $75,000 on average according to Surrogacy Australia, and the law does not provide much support, therefore, proving a lack of resource efficiency in this area of the law. However, if people decide to go through with the process regardless of these high costs and if you are a woman below 40 years of age you have a 16-27% chance of having a successful live birth according to the Victoria State Government, meaning multiple attempts would be necessary to achieve the goal of a child. These statistics prove this legal mechanism to be an ineffective way of achieving freedom from being surrogate as the likelihood of success is slim as well as time-consuming and expensive.

There are also inconsistencies between jurisdictions in Australia’s states. For example, the Northern Territory does not have any laws regarding surrogacy making it completely legal whereas in New South Wales as previously mentioned, commercial surrogacy is illegal. This conflicting legislation, as a result, increases the ineffectiveness of law regarding surrogacy because it creates inequalities between state legislation.

According to the ‘Status of Children Act 1996’ (NSW) which created the ‘presumption of paternity’, when a woman becomes pregnant by using donor sperm from someone other than her husband, the man is presumed not the father of the child born. This ideology was widely accepted by sperm donors however they defend themselves against any responsibilities an actual guardian as a father would have over the sperm donation recipient’s child. In the, B v J (1996) case, the father refused to pay any sort of maintenance arguing that the child was not his and that maintenance was the sperm donor’s responsibility rather than his too, however the court rejected this argument under ‘presumption of paternity’ clause created by the ‘Status of Children Act 1996’ (NSW), which proves the effectiveness of courts in maintaining consistency with legislation ultimately achieving equality and justice for all.

Although the court has demonstrated its effectiveness inconsistency with legislation there was also a case which proved its ineffectiveness where, Re Evelyn (1998), a birth surrogate mother removed her baby from prospective parents after 7 months. The court was exposed to its incapability in this kind of matter in the way it couldn’t do anything due to a lack of enforcement mechanisms and lack of binding legislation. The law’s ineffectiveness does not end in that kind of case but also has been ineffective in clarifying the rights and responsibilities of commissioning parents and birth parents and the rights of the child. This shows that there is much of a need for law reform as these cases have proven to show that there are many loose ends in finding justice for those abiding by the law.

Surrogacy Australia is an NGO which aims to progress the rights, social and legal status of Australians using surrogacy overseas and within Australia support surrogacy as an effective means for infertile adults to have children and raise a family. It also supports the idea that surrogacy does not necessarily have any long-lasting effects on the surrogate mother and child. Surrogacy Australia has been able to align with politicians to educate people on such information and lobby for laws which protect surrogates. This has proven the effectiveness of this non-legal response to surrogacy in supporting its future by being able to give people the privilege to raise a child.

There are many non-legal lobby groups like ‘stop surrogacy now’ that have chosen to oppose surrogacy as it gives a means of same-sex couples raising children as they argue that parents of the same sex face difficulties ranging from problems accompanying small child of the opposite sex to a public toilet to social stigma. These lobby groups also believe that surrogacy is “indistinguishable from the buying and selling of children” and will have a notable impact on the child/children in their future. This is understood to be one of the key values of the Convention on the Rights of the Child (CROC) where all actions concerning children should be firstly in the best interests of the child then others involved may follow as secondary and tertiary considerations. This shows the effectiveness of ‘stop surrogacy now’ as a non-legal lobby group due to the support and backing of human rights in their cause.

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Similar groups tend to focus on using the media to oppose surrogacy and birth technologies to raise the issues of inequity and injustice and strongly express concerns of dehumanization. Although, these methods of opposition against surrogacy are undermined due to lack of other organization support demonstrating that “strength in numbers” is key for success in this area of practice. In saying this, it is fact that these non-legal lobby groups can be effective through the backing of international law but are ineffective in comparison to other legal responses in opposing surrogacy as they lack the ability to enforce their values due to them not being legally binding. However, when united with supporting media mechanisms , these non-legal lobby groups prove their effectiveness in promoting surrogacy as shown in media intervention regarding surrogacy in an article on ‘Online Opinion’ which states there is no absolute barrier to conception, which can be proved and that there has also been an uprise in concerns about long term health risks for children of IVF as a foundation of reason for strict laws pertaining to surrogacy.

Certain professionals are required to report to Family and Community Services if they suspect child abuse, and a caseworker will make an assessment to determine the extent of risk. A child assigned to a caseworker is supposed to be receiving medical attention, however, in 2007, more than 150 children who have previously been reported to Community Service died at the hands of their abusive parent or carer and also approximately 150 children that have been reported to DOCS (FACS) as being at the risk of harm have died at the hands of abusive parent or carer most aged less than 4 years. This is due to low financial resources being assigned to the Department of Community Services (DOCS) not allowing them to protect and support victims of child abuse effectively proving resource inefficiency and altogether inefficiency as a non-legal mechanism.

The Children’s Commissioner, considering such detrimental statistics, has now established ‘monitor state programs’ to resolve the issue of child abuse and strengthen existing child protection proposing a national framework for child protection. As a result under the newly formed ‘Child Protection (Working with Children) Act 2012’ , a child is placed in the protection of people who work with children and background police checks are done to assess whether the person is unable to care and protect the child while being employed through a ‘Working with Children Check’ for further support. This shows the laws attempt in resolving these conflicts by protecting children rights against unjust crimes but also displayed a lack of responsiveness as it took around 5-6 years to make this legislation work and as a result showing its level of effectiveness and ineffectiveness in response to this crucial societal issue.

Around 2 years later an article was published by ABC News April 2014 titled, ‘Vulnerable children getting lost in NSW child protection system’ which reported that an ombudsman declared that 21% of children at risk of severe harm had face-to-face contact with a caseworker in 2011 compared to 29% in 2014. Regardless of this improvement, still more than 2/3 of children in DOCS were not given a chance for face-to-face interviewing and assessment proving a lack of balance in rights for all children who need such a service as well as poor accessibility which forces the rest to remain lost in a seemingly hopeless system. Further failure of the system is shown in the article by SMH 2013 titled ‘Case workers unable to cope with workers’ which outlines the failure to protect vulnerable children against, in this case, Donna Deaves who pleaded guilty to the manslaughter of 2-year-old Tanilba Warrick-Deaves. All this clearly shows that even after multiple changes and law reform the ineffectiveness of DOCS as a legal mechanism in achieving just outcomes for the care and protection of children is still present and dominating any sense of effectiveness that has been previously proven to work.

Just like in any case of an important contemporary issue, there are always non-legal mechanisms standing up for what they believe should be done in the matter. In the case of caring and protecting children, organizations such as the Salvation Army provide extensive support and educational services to children in need such as childcare centers, counseling services, and emergency housing. Due to the salvation army being a nongovernmental organization they lack the capability to enforce and spread their aid to where it's needed due to it not being legally binding as well as lacking financial support necessary to make it work. Instead, they utilize the media to raise issues of inequity and injustice proving its effectiveness as a not so large non-legal mechanism through using the media as the media commonly popularises any cases regarding the care and protection of children because of how important it is universally accepted to be as a contemporary issue.

Another non-legal mechanism that fights for the care and protection of children is the ‘Kids Helpline’ which is a counseling service for young people between 5-25 years freely offered through phone calls, emails and over the internet contact. They focus on helping people with relationship problems, drug and alcohol abuse, depression, etc. The fact that it is a free and willing open source for assistance makes it a very accessible form of aid in caring for and protecting children from making wrong decisions. The helpline has shown its effectiveness in having responded, helped and ultimately bettered over 8 million callers making it a reliable way of help for those in need. Furthermore, this proves its effectiveness as a non-legal mechanism and as a result achieving just outcomes for children or youth who reach out to them for support.

The media proves its effectiveness as a non-legal mechanism against the mistreatment of children through articles which can reach out to a large audience. This is shown in an article called ‘Big Rise in child abuse reports’ by Yahoo News were in September 2012; there was an increase of 50% in reports of child abuse and neglect to the Department of Child Protection. The Minister of the organization Robyn McSweeney stated that this may be due to lack of “moral force” in nongovernment organizations which then again outlines the ineffectiveness of enforcement of the media as a non-legal mechanism.

To conclude, both legal and non-legal instruments used to combat and aid care and protection of children and surrogacy in the Australian legal system including the courts, media, legal organisations and non-governmental organisations have proven to be both effective and ineffective methods in fighting injustices and/or supporting the wishes of people in need within these two major contemporary issues.