April 24, 2024

Australian judge defines “conception” in surrogacy case

A judge in Brisbane, Australia, may have notched up a world first by defining the word “conception”.

A judge in Brisbane, Australia, may have notched up a world first by defining the word “conception”. Judge Leanne Clare was ruling on Queensland’s Surrogacy Act which requires an arrangement to be signed “before the child was conceived”. But neither in Queensland nor in neighbouring New South Wales had Parliament defined what it meant by “conception”. The judge adopted a controversial interpretation of what is essentially a medical question. 

Conception, she said, is not the moment of fertilisation of the egg by the sperm, but the moment of implantation in a uterus. This interpretation, she argued, was also more consistent with the purpose of the Act, which was to make surrogacy more consistent and reliable. If an agreement had to be signed before embryos were created in an IVF clinic, some women might not have time to find surrogates.  

“The use of in vitro fertilisation is now widespread.  In my experience when lay people talk about IVF treatments they tend to reserve the term ‘conceive’ for the circumstance where an embryo actually takes to the uterus and the woman succeeds in becoming pregnant as distinct from the procedure of implantation.  I am satisfied that in the ordinary everyday language of the community, the term ‘conceive a child’ means more than what can be achieved in a test tube and refers to the commencement of a pregnancy in a woman’s body.”

This is very relevant to IVF and surrogacy, because embryos can languish in tanks of liquid nitrogen for years. In the current case, an embryo was created in 2008, a surrogacy arrangement was signed in April 2011, and implantation occurred in July 2011. Hence, the arrangement would be valid. ~ Australian Surrogacy and Adoption Blog, Aug 8; Brisbane Times, Aug 10


Michael Cook
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