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Saturday, May 16, 2015

Families, policy and the law

8. Use of surrogacy by Australians: Implications for policy and law reform

This chapter uses the results of an anonymous online survey of 217 intended or current Australian parents through surrogacy, conducted in 2012, to illustrate how surrogacy is practised by Australians. It concludes with a discussion of current challenges with regard to Australian law and policy in this area.

Surrogacy as a means of family formation is defined as a woman carrying a pregnancy for a third party, with the express intention of giving up all parental and custody rights to the resulting child(ren). Surrogacy can be traditional, where the surrogate carries a child using her own eggs (fertilised with sperm from either the intended father or a third-party donor), or (more commonly) gestational, where the surrogate is implanted with an embryo developed from the eggs and sperm from any combination of the intended mother and father and/or from third-party donors.

Reasons for the growth in surrogacy as a means of family formation

International research has shown that the desire for children among the involuntarily infertile remains very strong, even after years of unsuccessful attempts to become pregnant (Blyth, 1995; Edelmann, 2004; Langdridge, Connolly, & Sheeran, 2000; van Balen & Trimbos-Kemper, 1995). Langdridge et al. also noted the desire of infertile couples to have a biological connection between the child and at least one of the prospective parents rather than to adopt an unrelated child.

Surrogacy as a means of family formation among Australians who cannot otherwise have a first or subsequent child, has been driven or enabled by a number of factors. These include:

child protection policy changes in recent decades, which have led to drastic falls in the availability of children via adoption. During 2011-12, Australian authorities noted the lowest number of adoptions ever achieved (n = 333). Of these, just 54 were of infants aged one year or less (Australian Institute of Health and Welfare [AIHW], 2012); source country adoption programs, which have strict criteria as to the age and family types who can adopt; for example, none of Australia's current intercountry adoption agreements allow same-sex couples (AIHW 2012); increasing numbers of Australian women putting off childbearing until they are older, leading to higher rates of age-based infertility (Luk, Greenfield, & Seli, 2010); improved assisted reproductive techniques, which allow greater use of gestational surrogacy, where the surrogate has no genetic relationship to the child(ren) she carries; increasing community awareness of surrogacy as a family formation option; and growth in the number of single and partnered gay males desiring to raise a family. Surrogacy regulation and practice in Australia

In recent years, Australia has introduced regulatory systems guiding the practice of surrogacy that define who can and cannot act as a surrogate, who is eligible to be an intended parent through surrogacy, what financial compensation may be paid to a surrogate, how the law will deal with parental rights, and what, if any, counselling is required prior to entering an arrangement.

While there is now a process in Australia to transfer legal parentage to intended parents where uncompensated surrogacy has been used, advertising for a surrogate or by a potential surrogate is forbidden. Surrogacy arrangements that pay the surrogate any monies beyond medical and other out-of-pocket costs is illegal in any Australian state or territory (except the Northern Territory). Queensland, New South Wales and the ACT have criminal laws in place to discourage residents from engaging in surrogacy in countries where compensating a surrogate for more than medical and out-of-pocket expenses is legal (Page, 2011).

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