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Friday, May 8, 2015

Perverse results of ban show we must regulate commercial surrogacy in Australia

How much more evidence do we need that Australia's approach to commercial surrogacy is broken before our leaders act? No one wants knee-jerk reactions to horror headlines, although we cannot ignore stories such as the baby Gammy case, where a convicted sex offender fathered twins in Thailand via a surrogate and then abandoned the twin with Down syndrome. But when senior judges start publicly questioning the outcomes, as Chief Justice Diana Bryant, head of the Family Court, and John Pascoe, chief judge of the Federal Circuit Court, did again last week, surely those in positions of power need to exercise it.

Just this weekend comes further proof that existing arrangements are not working. Despite the cost, the stress and the fact that in some states, including NSW, it is illegal, Australians are among the world's highest users of international commercial surrogacy, a new study suggests. And as Australians pursue their deep desire for a family they find themselves sourcing surrogates in risky places like Nepal, where about 60 women are carrying fetuses for Australians, who are worried for their safety and that of the babies they are carrying in the aftermath of the earthquake.

Our prohibition on commercial surrogacy here and the declaration in NSW, Queensland and the ACT that it is illegal to participate in it elsewhere have failed to deter prospective parents. Though its intention, the protection of vulnerable childless people, surrogates and children is noble and must be pursued, it is failing in its aims. As Chief Justice Bryant points out, with overseas clinics sourcing their donor eggs and sperm globally, children born to surrogates overseas using donor genetic material have no guarantee of knowing about or finding their biological mother or father. Chief Judge Pascoe has spoken of the plight of the surrogates, who may be forced to deliver by caesarean to meet the timetable of the clinic and whose poverty makes their consent to surrogacy questionable. In outlawing commercial surrogacy here, it appears that Australia has kicked the can of exploitation further down in the road to some of the poorest people in the world.

State authorities have shown no appetite for enforcing the law against those who undertake commercial surrogacy overseas, and we do not advocate hounding people whose desire to have a family has driven them to those lengths, but we do ask: if we are not going to prosecute, what are we going to do to protect the vulnerable?

Should we make a criminal background check of the Australian parents a condition of issuing a passport to a child who is the product of surrogacy, or encourage it by promising a pathway to legal parenthood in Australia if they supply one? Should we, as Chief Justice Bryant suggests, refuse to allow parents to enter a country with a child born of surrogacy unless they provide information about the genetic heritage of the biological parents and the identity of the surrogate?

Should we acknowledge the only way we can hope to ensure acceptable standards is to allow properly regulated commercial surrogacy in Australia?

A Federal Parliament standing committee has called for an inquiry into surrogacy. There have been 27 inquiries in the last 30 years. Now is time for leadership.


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