Documentary Special: Gay surrogacy - ABC Online

In Queensland, the LNP Government has indicated it will rollback some laws introduced by Anna Bligh when she was premier. One of those in particular is the Surrogacy Act, which currently allows same sex couples and singles to have surrogate children. The planned changes are being attacked as discriminatory and some gay parents worry about what else is being contemplated.

SIMON SANTOW: It's been a tumultuous year in Queensland.

Hello, I'm Simon Santow with a Radio Current Affairs Documentary.

After 14 years in office, Labor was swept aside by a Campbell Newman led LNP (Labor National Party) Government. There have been strikes, political defections and massive job cuts in the public service.

The Government has also indicated it will rollback some laws introduced by Anna Bligh when she was premier. One of those is the Surrogacy Act which currently allows same sex couples and singles to have surrogate children.

The planned changes are being attacked as discriminatory and some gay parents worry about what else is being contemplated.

Nance Haxton in Brisbane has our story.

(Sound of a baby giggling)

NANCE HAXTON: The first sound you hear when approaching the house of Jared Merrell and Michael Knowles, is the giggling of their 15-month-old twins Huxley and Elijah.

(Sound of a baby giggling)

The doting fathers love reading to their children, and the boys lap up the attention.

JARED MERRELL (reading): Peter Rabbit, Peter Rabbit, is that you?

NANCE HAXTON: But it's been a long road to get to where they are today. The two men first decided they wanted to have a family four years ago.

MICHAEL KNOWLES: Both of us are very family orientated sort of people. Being a gay couple, obviously it is not as easy to start a family as it is for heterosexual couples. It just sort of happened one night. Jared was laying there and said you know, did you want to start a family and I said yeah.

NANCE HAXTON: The journey since has taken them to Nevada in the United States and rural New South Wales where they met potential surrogate mothers for their children.

But after many cycles of IVF neither of those relationships produced the family they craved. Rather, through friends of friends in their hometown of Brisbane, they found a surrogate mother who lives close by their house in the northern suburbs.

Michael Knowles says the relationship was meant to be and Rachel, along with her extended family, are very involved in their children's lives.

MICHAEL KNOWLES: She plays an amazingly important role in the boys' lives and will continue to do so. They are over here regularly. Jared babysits when he's at home with the boys. If she's in a bind with her kids, she can drop them over here. She comes over for dinners and play dates and we think that's just crucial for boys' development.

The questions are going to come up when they get older. It's easier to lay it all out from the beginning then there's no awkwardness. The boys know what's going on, how they were created and that's just one less thing they have to worry about.

NANCE HAXTON: They created their family after the Surrogacy Act was brought in by Anna Bligh's Labor government in 2010. That legislation formalised the process for people wanting to enter altruistic surrogacy arrangements.

Altruistic surrogacy is when a woman agrees to become pregnant and bear a child for another person for no financial gain, and transfers the care of that child soon after birth.

In the lead up to the state election in 2012, it appeared the new laws had bipartisan support.

CAMPBELL NEWMAN: We are not making any changes to the laws on those matters.

NANCE HAXTON: Campbell Newman and his LNP swept into power with a thumping majority and what had looked like a rock solid commitment quickly became a broken promise.

Attorney-General Jarrod Bleijie.

JARROD BLEIJIE: And we will be amending the Surrogacy Act to repeal the provisions with respect to same sex couple, de factos of less than two years and singles.

NANCE HAXTON: Many people were surprised by the LNP's hardline approach and ever since, lawyers and affected groups have been trying to find out the details of the planned changes to the law.

What seems certain, though, is that single people and gay couples in Queensland will be banned from having surrogate children.

Over several months the ABC has made multiple requests to Attorney-General Jarrod Bleijie, to explain why the LNP is making the changes, but he has steadfastly refused to talk.

Michael Knowles and Jared Merrell say that while the changes won't affect their family, they feel the need to speak out.

MICHAEL KNOWLES: To create a family and then to be prosecuted for doing so for no other reason apart from your sexuality is so disheartening and disappointing.

JARED MERRELL: I think the changes are quite concerning on a legal level in that by putting all these boundaries in place and all these hurdles and making it illegal and nigh impossible, it is still going to happen.

People are still, if they want to start a family and they've got that desire, if they are going to make it happen and there is always a way to make it happen. And what this means is that those people, whether they are the parents or the surrogate, they are not going to have any rights or any protection and they are going to open to being manipulated, to being exploited and it is just going to be really dangerous and at the end of the day there will be children involved and it is a bit scary to know what situation, what might happen.

NANCE HAXTON: It seems that voters in Queensland are split over what the new Government is doing.

Two petitions have been presented to the Queensland Parliament this year regarding the proposed changes to the Surrogacy Act.

One from the local Labor MP for South Brisbane Jackie Trad called for the Government to maintain surrogacy laws as they are. She received more than 5,300 signatures in two months.

But another petition supporting the amendments to the Surrogacy Act collected more than 10,000 signatures. That petition was supported by the powerful lobby group The Family Council of Queensland.

Group spokesman and Toowoomba-based GP Dr David van Gend says it's a human rights issue, not a religious one.

DAVID VAN GEND: We strongly support the Attorney-General's proposed changes to Labor's Surrogacy Act because it will reaffirm the principle which must guide any such matters that a child should have at least the possibility in life of both a mother and a father. That is a self evident principle. It goes to the heart of our existence of a family with a mother, father and child.

And yet the Surrogacy Act brought in by Labor effectively abolished the birth right of a child to have both a mother and a father.

NANCE HAXTON: So those concerns stand for both single people and for gay couples?

DAVID VAN GEND: Absolutely. I mean, the principle is the same. If you have a single person in Queensland over the age of 25, that single man for example is able to obtain a child of his own by surrogacy and that means getting a woman's egg of course and maybe his sperm and then a suitable surrogate mother who will bear this baby and then give it to him.

Now it becomes his baby and the Queensland laws are so bogus that they will then falsify the birth certificate of that baby to say there was only one parent, that there was no mother. That is the legal fiction that is contained in this current law that must be changed.

NANCE HAXTON: It is perhaps one of the great ironies of this debate that all sides of this complex argument passionately believe that human rights are at risk.

Dr Gend says allowing gay couples and single people to become surrogate parents breaches United Nations declarations on the rights of the child.

DAVID VAN GEND: You can go to the Declaration on the Rights of the Child which says that, just quoting from memory, that the child shall not be separated from her parents except in extreme circumstances.

You know, obviously there are extreme circumstances where a child cannot have both a mum and a dad. We know that. You know, a parent can die, a parent can desert and that little child is left with a life without a mother or a life without a father but that is a tragedy. You wouldn't wish that for a child. You'd never inflict it on a child wilfully.

And yet through the Bligh government's Surrogacy Act the state wilfully inflicts on a child the loss of a mother or if it is two women, wilfully inflects on a child, the loss of a father.

NANCE HAXTON: Surrogacy specialist Stephen Page from Harrington Family Lawyers says the proposed changes would breach the Universal Declaration of Human Rights, and the Federal Sex Discrimination Act.

STEPHEN PAGE: The petition which talked about these changes having to occur relies on wrong information. It cites the International Convention on the Rights of the Child but in fact when you look at it, it doesn't. It actually cites the earlier international declaration of the rights of the child, a 1950s document that uses the tender years doctrine. That doctrine says children of young years should be living with their mothers.

When one looks at the International Convention of the Rights of the Child it says the best interests of the child are the paramount concern, and that should be the approach taken generally in legislation and certainly that under the Surrogacy Act and that's the approach that should be taken to be consistent with the international convention.

NANCE HAXTON: So in the surrogacy arrangements that you have enabled, I suppose, have you seen any issues with regard to the sexuality of the parents that have caused problems or have been an issue that should be looked at by governments?

STEPHEN PAGE: No. Look, the reality is that if you want to have a child through surrogacy it's not as though you're having a one night stand, having sex in the back of the Commodore ute where a child appears by magic nine months later.

It is a terribly difficult, demanding process. It is not a quick process. It takes 18 months to two years. They're asking counsellors to come into their lives about children. They've got a judge coming into their life.

If anything these children are going to be cherished. They're going to be loved and the people that I've seen who have had their children through surrogacy, they love their kids to bits and it makes no difference about whether they are a couple or they're single. It makes no difference about their sexuality. They just love these kids.

NANCE HAXTON: It's not only lawyers that worry about where this is heading.

KATHERINE EASTAUGHFFE: What are you eating there darling? Ah.

NANCE HAXTON: It's afternoon tea time for Daniel and Isaac Eastaughffe after a tough day playing games and running themselves ragged around their inner city Brisbane home.

ISAAC EASTAUGHFFE: Soldiers.

KATHERINE EASTAUGHFFE: Oh, soldiers.

NANCE HAXTON: Katherine Eastaughffe and Una Harkin are the boys' exhausted but proud parents. They've been in a relationship for 12 years, and Katherine underwent fertility treatment so they could bring children into their family.

Katherine Eastaughffe says they are deeply concerned about the wider ramifications of the Queensland Government's proposed changes to the Surrogacy Act.

KATHERINE EASTAUGHFFE: Because when the surrogacy laws first came in, at the same time they allowed two mothers to be on birth certificates. So Una is now on both the boys' birth certificates. It possibly means that Una is no longer recognised as their mother, especially when she's the fulltime carer of our children.

NANCE HAXTON: The Queensland Law Society's family law chairman Alison Ross says the proposed changes to the Surrogacy Act are discriminatory and potentially breach the federal Sex Discrimination Act.

ALISON ROSS: Certainly if surrogacy does become illegal for certain types of people, it will continue. There is really no doubt about that. People will either go overseas to access surrogacy arrangements or it will go underground.

And the difficulty that that leads to is that legally the child remains the child of the birth parent and if that birth parent has a spouse, it is also the child of that spouse even though it may not have a genetic connection to that person.

NANCE HAXTON: It's opening up a legal minefield by the sound of it?

ALISON ROSS: It is opening up a legal minefield and what it does is it forces people to either try and obtain orders from the Family Court for parental responsibility or alternatively, it forces people into adoption where they are required to adopt their own child so to speak.

NANCE HAXTON: Katherine Eastaughffe says they feel betrayed.

KATHERINE EASTAUGHFFE: I remember Campbell Newman saying before the election that they weren't going to make any changes to surrogacy so it's not something they have a mandate to do. And that seems to be kind of saying it is okay to homophobic.

NANCE HAXTON: Do you think that it would have an effect on society's views perhaps of families such as your own as well?

KATHERINE EASTAUGHFFE: Definitely and out of step because the way we live we feel very accepted by our community. You know, the fact that our neighbour' son is over here playing with our son. At Kindy, Dan, mother's day came and Dan made two mother's day presents for both of his mums.

You know, most people don't blink an eyelid and so it seems to be out of step. You know, the Government is sort of saying on the one hand these families aren't equal but the way we live our lives, it doesn't matter to other people that we are two women.

NANCE HAXTON: It's for this reason that Member for South Brisbane Jackie Trad presented her petition to the Queensland Parliament with more than 5,000 signatures protesting against the changes.

She says the ramifications of the proposed amendments are far wider than simply preventing many gay couples from becoming parents.

JACKIE TRAD: And that hurdle is the Sex Discrimination Act. It's one thing not to have had laws in place, it's another thing to take laws away based on people's sexuality. And once the Government starts doing that what they will find is legal challenge because citizens in this country have a right to protest, have a right to challenge discriminatory behaviour, whether that's from their neighbour or whether that's in their workplace or whether it's from the government of the day, which is what we're seeing from the Newman LNP government.

NANCE HAXTON: Is this part of a broader agenda concerning same sex couples?

JACKIE TRAD: I think quite clearly what we've seen from this Government is some very early decisions that many people in the same sex community feel have been specifically targeted at them, whether that was defunding healthy communities which does provide peer education support for those people at risk of contracting HIV-AIDS or living with it, whether it was in fact changing the Civil Partnerships Act to completely water it down and to make it essentially meaningless in today's society and now the touting of the surrogacy changes.

I understand why people, gay and lesbian people in Queensland feel like they have been particularly targeted by this Government. I know many of them are talking about leaving Queensland. I think that they should stay. I think that they should continue the fight. They are valued, they are respected and they are loved by their fellow Queenslanders if not by this Government.

As I go across my electorate I see lots of families, lots of families started by same sex couples, families who are melded from other families. I see a lot of families but the one thing they have in common is love and as the mother of two young boys everyone deserves that love.

NANCE HAXTON: The Attorney-General Jarrod Bleijie said in a statement that a submission will go to Cabinet early in 2013 regarding the proposed changes to the Surrogacy Act, which will then be introduced to Parliament later in the year.

He said the Government is aware of the strong and sincerely held views by those who oppose surrogacy and those who support it, and will carefully consider those before proceeding with amendments to the act.

Scott Prasser is the professor of Public Policy at the Australian Catholic University. He says the delay in implementing the changes reflects conflict within the liberal and conservative arms of the LNP over the proposal to limit altruistic surrogacy only to heterosexual couples.

SCOTT PRASSER: I think Campbell Newman has a different view on this personally himself but I think he is in a sort of amalgamated party. It's a Liberal and National party combination and there's a very, very strong conservative element philosophically in that party, especially on social issues, and I think that he, this is a battle that he would not win.

I think it would be very hard to renege now. It would upset the conservative elements of the party and I think that would play into the hands of groups who may want to split away or join the Katter Australia Party, those sort of things.

NANCE HAXTON: Because I suppose ultimately, the legislative drafting of this would be quite complicated in that it could leave some surrogate children up in the air and also the future for children in these sort of families would also be vague?

SCOTT PRASSER: Well, that's right. There is going to be issues about what about people who are being affected by existing arrangements, where do they fit? Is the draft legislation going to be available for people to contribute and contact? We hope it will be and we hope the Government is learning about this.

NANCE HAXTON: But I suppose ultimately being a one House Parliament, the consultation is not essential.

SCOTT PRASSER: Look, as we all know they have 90 per cent of the seats. As you say it's a unicameral parliament, it's the most powerful government really in Australia, and it doesn't got to compromise with anyone. It's only problem is it has got to compromise with its own internal structures. So once they make a decision, they can push this through.

(Sound of playing with a baby)

NANCE HAXTON: For 15 month old twins Huxley and Elijah, the politics at play isn't really having an impact on their daily lives.

Their parents Michael Knowles and Jared Merrell though find it hard to be so carefree.

MICHAEL KNOWLES: It's really disappointing that a Government with such a huge majority feels the need to take away those rights.

NANCE HAXTON: Do you feel disheartened as a gay couple, do you think about your future even in Queensland?

JARED MERRELL: It doesn't feel good but I can get through it but the people that I think that it really affects are the young teenagers who are struggling with their sexuality, who may be getting bullied, who are dealing with hormones and everything else that happens while you're a teenager and being gay at high school is not easy.

So to then have the Government put a very clear message out there that you are different, we're not going to let you get married, we're not going to let you have kids because you're different. The people who may be bullying you, it is reinforcement that what they're doing and what they're calling you and what they're saying, the Government is supporting that.

NANCE HAXTON: But Family Council of Queensland spokesman Dr David van Gend hopes that the proposed changes to surrogacy laws will prevent other families evolving in the same way.

DAVID VAN GEND: Two men can and have but you know, can continue to obtain a child of their own in Queensland under the Surrogacy Act, and that means the child will be created in a premeditated way with the absolute foreknowledge that that child can have no mother in her life at all and I consider that as a form of gross abuse of adult power, to so deprive a child of the fundamental relationship in all human existence.

These are deep things from nature that we dare not meddle with, with our interfering social engineering that the Bligh government brought in such as the Surrogacy Act. We dare not violate such deep things and think that the consequences will not be appalling for children.

You know, we would object to a pair of celibate monks obtaining a child just to raise because they too, they wouldn't necessarily be homosexual or anything, but any two same sex people cannot provide a child with a mum and a dad.

So that is the principle that we are defending, nothing to do with the sexual orientation or behaviour of individuals involved.

NANCE HAXTON: Jared Merrell and Michael Knowles hope that they can appeal to legislators and the public alike that they are a legitimate family.

JARED MERRELL: There are a lot of different families out there now. There's a lot of single parent families, there is a lot of adopted families, foster care families. There's no formula for it. The only thing that works is love. Our boys are loved, our boys are cared for, our boys were planned. They have everything they need, they're very happy, they're thriving and they will never feel unloved.

MICHAEL KNOWLES: It takes a village to raise a child, they have two parents, their parents are two males. They know their mother, they know their half siblings. They have a wonderful supportive group of friends and family around them. They want for nothing.

We are incredibly fortunate to have them, and I just, I want other people who want to start a family to have that opportunity. I don't want that right taken away from them.

SIMON SANTOW: Nance Haxton with that report. You've been listening to a Radio Current Affairs documentary.