HSC Same sex relationships essay
Same-sex Relationships Essay
Evaluate the effectiveness of law reform in response to the recognition of same-sex
relationships and surrogacy and birth technologies? (You must address four case studies
in your response) – 1200 words
Law reform has been fairly successful in its response to the societal issues of same-sex
relationships and the birth technology of surrogacy despite the slow rate of change, but the
processes must continue to ensure fairness, equity and equality before the law. Specifically,
in response to the exemplary cases of Farnell & Anor and Chanbua (2016) (better known as
the Baby Gammy case of the Thai surrogacy controversy), the Hope & Brown v. NIB Health
Fund Ltd (1995), Toonen v. Australia (1994) and other social complications that arose as a
result of the increasing recognition of same-sex relationships and altruistic surrogacy in
Australia. The efficiency of law reform will be evaluated through the legal responses to each
case and the future benefits for people seeking the use of birth technologies and the
continued pressure for full legal and social equality for same-sex relationships.
The traditional definition of marriage as a legal relationship and bond between a man and a
woman has been challenged in modern times by society’s changing views, but the legal
recognition of same-sex marriage and rights falls behind. One of the fundamental legal cases
challenging the differences in rights and opportunities of people in same-sex relationships
and in heterosexual relationships is the Hope & Brown v. NIB Health Funds Ltd (1995) legal
dispute resulted from the company’s denial to provide insurance to the son of a homosexual
couple, who shared assets and lived together for a long time, thus being only a de facto
couple. The NSW Equal Opportunity Tribunal settled the case in favour of Hope and Brown
on the basis of the violation of the Anti-Discrimination Act 1997 (NSW) by NIB. The
significance of the case is in its successful legal action against a large corporation on the basis
of discrimination, which gives the opportunity for similar future actions for justice.
To challenge Tasmania’s laws criminalising sexual intercourse in private between consenting
males, Nicholas Toonen, in the Toonen v. Australia (1994) dispute, stated that Tasmania’s law
violated Australia’s commitment to the International Covenant on Civil and Political Rights
(ICCPR), specifically, the right to privacy under Article 17 and the right to equality before the
law as per Article 26. Tasmania refused to revoke Sections 122 (a) and (c) and 123 of the
Tasmanian Criminal Code, which prompted the Commonwealth Government to ratify the
Human Rights (Sexual Conduct) Act 1994, legalising sexual intercourse between any
consenting adults, effectively abolishing Australia’s last sodomy law. The legislative reform as
a result of Toonen’s challenge sets a precedent for any future legal challenges on the grounds
of equality before the law as per the ICCPR, but is only a small step toward law reform,
increased recognition and fairness in the constantly changing social climate.
The cases of Hope and Brown and Toonen were individual cases, but in the broad picture
accumulated social awareness of the problem of inequality, being the foundational steps for
the 61.6% of Australians voting in favour of legalisation of same-sex marriage in the 2017
postal survey, culminating in the legislation of the Marriage Amendment (Definition and
Religious Freedoms) Act 2017. The two cases show that specific legal challenges can result in
large-scale law reform, creating precedents, hence accelerating the recognition of same-sex
relationships. However, there are many areas in which discrimination is still present, for
instance, employers such as religious schools, are permitted to inquire as to a person’s sexual
orientation and reject applications based on that. Hence, law reform has been successful, but
insufficiently widespread.
The commercialisation of the surrogacy birth technology is historically illegal in Australia. In
NSW, the Surrogacy Act 2010 (NSW) outlaws commercial, and permits only altruistic
surrogacy. However, altruistic surrogacy is poorly regulated in Australia, often creating more
difficulties than social benefit. There is also a lack of females wishing to become surrogates,
leading to the majority of couples seeking to pursue surrogacy overseas, with more than 70%
of Australians born through surrogacy, being born overseas in 2018. The issues associated
with the protection of surrogates and biological parents are exemplified in the case of a
Melbourne woman Diane (name changed), who in 2014 became a surrogate for a couple she
had been friends with, but received very little support and no compensation for more than
$2500 worth of medical and legal expenses. The case demonstrated the combination of very
little protection for altruistic surrogates and the high likelihood of problems arising, showing
the latency of law reform in protecting domestic altruistic surrogates.
One of the most publicised and controversial surrogacy cases in Australia, the Baby Gammy
case, shed further light on the uncertainty and risk regarding the pursuit of surrogacy
overseas. The Baby Gammy case (Farnell & Anor and Chanbua (2016)) involved the hiring of
a commercial surrogate from Thailand by an Australian couple. The surrogate gave birth to
twins, and decided to keep the second child herself, a son Gammy, who had been diagnosed
with Down syndrome. This resulted in a legal dispute in the Family Court of Western Australia
over the parental arrangements for Pipah, Gammy’s twin sister, settled in favour of the
couple. Judge Thackray heard the case, and in his words, “The appalling outcome of Gammy
and Pipah being separated has brought commercial surrogacy into the spotlight”, exposing
the low regulation and protection available to Australians seeking surrogacy abroad. Although
this case highlighted the possible complications in relation to parenting and citizenship of the
child, it has also shown the successful reform in relation to the protection of children. Judge
Thackray stated that he based his decision on that action which would best benefit Pipah,
which ultimately stems from Australia’s ratification of the United Nations Convention on the
Rights of the Child in 1990, hence law reform can be deemed successful in protecting the
interests of children in family law in disputes over children born through surrogacy.
In 2016, the House of Representatives Standing Committee on Social Policy and Legal Affairs
conducted an investigation and recommended that the Australian Law Reform Commission
“inquire into and develop a national model law on altruistic surrogacy”, unifying the varied
approaches used by the state governments with the ultimate aim of protecting the surrogate,
the children and the intended parents. In 2018, the Australian Government responded to the
Standing Committee’s Surrogacy Matters report, stating its support for a nationally consistent
model, however, the corresponding legislative change has not occoured, due to the latency
of law reform. Additionally, future national legalisation of commercial surrogacy would be an
effective measure to provide security to surrogate mothers, because of the payment they
would receive upfront, avoiding unexpected problems, where the altruistic surrogate could
accrue large expenses during her pregnancy with no compensation from the intending
parents, because of the fear of breaking the law, as the boundary between altruistic surrogacy
and commercial surrogacy may be easily overstepped. The commercialisation of surrogacy
would also prevent people from seeking foreign surrogates, minimising the associated risks.
However, the legalisation of commercial surrogacy has to be implemented only with strict
controls, including the determination of the medical need for surrogacy of the intending
parents and thorough criminal background checks, which was shown to be an issue in the
Baby Gammy case, where the intending father was a historic child sex offender. Therefore,
law reform has been successful, but latent in its response to the issues related to the birth
technology of surrogacy.
In conclusion, law reform has been somewhat successful in ensuring the recognition of samesex relationships and birth technologies through the gradual, but conclusive amendments of
increasing amounts of legislation to grant everyone equal rights and freedoms before the law.
However, many pathways for discrimination based on sexuality to occour, which law reform
must adapt to address more quickly. In relation to surrogacy, law reform has mostly improved
with regard to protection of the child, but still does not assure surrogates and the intended
parents sufficient security to be confident in the pursuit of surrogacy.
1320 words
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