ART Research

Unpublished research

These short unpublished papers are listed because of potential historical interest. It should be noted the information in these papers is not current and more recent research should be consulted.

Swensen (1992) Should surrogacy agreements be recognised by the Australian legal system?

This exploratory research paper sought to explain some of the factors that sustained the intense scrutiny and concern about the development of surrogacy evoked in policy makers.

Surrogacy in the early 1990s had begun to develop as an option for ART as a solution to having a child to address female infertility. The growth in surrogacy indicated of just severely constrained the range of reproductive choices was for women and couples in this position.

The paper argued whereas society has paid scant regard to moral and ethical issues of tens of thousands of men who have sold sperm to assist infertile couples, there was an excessive concern aroused by the right or otherwise of the very small number of women involved in commercial arrangements to provide a service to those otherwise unable to have a child.

There is some consideration of the issue of whether if the courts enforced commercial surrogacy agreements even though governments may prohibit them, will this result in an informal unregulated market which may be even more exploitative of weaker parties? For example, would it be preferable to treat such agreements as a kind of pre-adoption agreement?

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Swensen (1993) Modern families: children conceived by the use of reproductive technologies and the Commonwealth family law power

The paper argued because at that time the High Court of Australia (HCA) had adopted a restrictive concept of a ‘child of the marriage’, through a narrow legalistic constitutional definition of this term, this meant family law had lagged in responding to the changing nature of marriage, it had been restrained and had to operate within a narrow definition, thereby cast so as to retain the conservative status quo.

It was also argued the HCA could be criticized for not recognising the distinctions between social, psychological and genetic dimensions of parenthood, as the meaning of these terms had evolved and were different to those understood when the Constitution had been framed in the 1890s.

This narrow interpretation of the Commonwealth’s powers meant that the system of family law has been constructed on ‘a biological conception of parenthood and the family, specifically, that ‘true’ parents are those with whom biological links exist, and that a person’s true identity is determined genetically. This was an asocial conception of kinship and personality and would undermine both the social influences on personality formation and the conception of the family as a social institution constituted by relationships structured by norms and values.’

Click here to view or download a PDF (192k) version of this paper.