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Friday, May 15, 2015

Should commercial surrogacy be legal in Australia?

For couples who cannot conceive naturally or through IVF, surrogacy is one path to parenthood. While altruistic surrogacy – where the surrogate does not gain financially from the arrangement – is legal in Australia, commercial surrogacy is illegal in all states and territories. Further, for residents of NSW, Queensland and the ACT, entering a  commercial surrogacy agreement overseas is also banned – a law desperate couples have been flouting to have children overseas, mainly in India and Thailand.

The head of the Family Court, Chief Justice Diana Bryant, said in a lecture last month that she is confident Australia will move to legalise commercial surrogacy, which she says would help counter the "dark side" of the international trade, where Australians account for 25 per cent of all international surrogacy arrangements.

While there are calls for the practice to be legal in Australia, others have concerns that even a well regulated commercial surrogacy sector has the potential for exploitation and would not result in the the best outcome for children and surrogates. Here are two views on the issue:

The case for commercial surrogacy

Sam Everingham is the founder of Surrogacy Australia and has children who were born through surrogacy.

More than a thousand infants born via surrogacy entered our country legally last year, many of them from India.  Yet based on the actions of a few selfish Australian couples, six months ago India effectively blackballed citizens of just one country – Australia – from engaging in surrogacy within its borders. Thailand has closed access to all foreigners.

Meanwhile, the Australian states have done nothing to examine why so many of its citizens seek surrogacy abroad and how to address this.

Australia is in the extraordinary position of being the largest user nation globally of cross-border surrogacy yet provides no education on the topic to its citizens. Instead, punitive laws criminalising "commercial" arrangements have been introduced yet have failed dismally. Laws banning surrogate compensation and advertising for a surrogate had no positive effect. Knee-jerk policy change is not the solution – a well-planned national response is needed.

Both the academic research and the adult children I've met show just how well grounded children born through surrogacy are and how well they understand their origins and identity. Families headed by single mothers by choice, lesbian mother families, gay father families, families created by IVF, egg donation, sperm donation, embryo donation and surrogacy are increasingly common. This reality demands a reassessment of not only legislation but the day-to-day language we use.

In the US, where ethical surrogacy has been practised for more than 30 years, the woman carrying a child for the intended parent is referred to as a gestational carrier rather than a surrogate mother. There is sound reasoning for this - they are not a "replacement" mother. While the research shows children born through surrogacy understand this from a young age, wider Australian society does not. Our language reinforces this error.

What about the question of who is a parent? In modern Australia, the Catholic concept of a "natural" parent is embarrassingly out-of-date. Academics and lawyers get tied up in knots over who is the "natural" or "legal" parent in surrogacy arrangements, as we parents quietly get on with rearing the children we have cared for from birth.

Not all surrogacy is carried out ethically, but remedying that is a matter of properly funded education, psychological support, counselling and compensation. Indeed, the nine months of sacrifice, love and care which surrogates provide is not ordinary work. It involves a woman's whole body and her whole life. This is something that deserves more than praise. Family Court Chief Justice Diana Bryant and Federal Circuit Court Chief Judge John Pascoe quite rightly call for the ban on surrogate compensation to be lifted in Australia.

George Brandis – listen to your advisers and authorise that national enquiry into surrogacy practice by Australians at home and overseas. It is urgently needed.

And for those concerned about outcomes for children – come over for dinner with my kids. Maybe you'll observe what child and adult psychology experts have concluded – the quality of our family relationships and our children's wider social environment are far more influential in their psychological development than how they were brought into this world.

The case against commercial surrogacy
Bernadette Tobin is the director of the Plunkett Centre for Ethics at St Vincent's Hospital and the Australian Catholic University.

An ethically sound underpinning for laws permitting commercial surrogacy In Australia?  It's just not possible.

Chief Justice Diana Bryant has been reported as saying that Australia could create legislation that protected would-be parents and surrogate mothers, and "most importantly" the children born of their contracts, legislation which would provide an ethical underpinning for commercial surrogacy.

An ethically sound law permitting commercial surrogacy in Australia is really a contradiction in terms. Even though infertility can be terribly sad for some couples (who deserve our understanding and support),  the wellbeing of the future child – the only person who does not get to have a say in the arrangement – ought to be the starting point for our ethical evaluation of the practice.

We have to consider whether surrogacy in and of itself wrongs the child brought into existence before we go on to consider two further questions: Do surrogacy arrangements exploit women? Do surrogacy arrangements put children at risk of abandonment?

Of course, the international trade in surrogacy exploits poor women. It is not obvious that bringing the practice under Australian law would change that. The income disparity may not be as great, but some women would still be paid to have babies for other women.  And of course children - like Baby Gammy - who do not come up to the expectations of the commissioning couple would still be at risk of abandonment.   But fixing those things –  if that were possible - would not begin to address the fundamental ethical question, the "most important" question, about surrogacy.

Chief Justice Bryant seems to acknowledge that surrogacy can wrong the child who is brought into existence, when she says "we are allowing the birth of children [overseas] who will never know their biological mother and have no means of finding out who that might be".  Her solution seems to be that we ought to require proof of a baby's genetic origins. This is no bad idea, and it certainly reflects what we have learnt from mistakes we have made in the past, in particular with children born of anonymous sperm donation.  It is to this country's credit that we no longer permit this to happen.

But ensuring that children know about their biological origins is only the beginning.  It does not address the deeper question about whether surrogacy wrongs the to-be-born child. I submit that it does.  

Surrogacy intentionally violates a child's entitlement to be brought up – if at all possible – by his or her natural parents.  Surrogacy intentionally violates the gestational link between the child and the natural mother.  No surrogacy contract can protect the child from the wrong done to him or her by being brought into the world in these circumstances, whether or not money changes hands.  And money will change hands if we permit the practice here in Australia.  The entrepreneurs are waiting in the wings!

Children are entitled to be brought up within their biological families. They are entitled to be brought up by their natural mother and their natural father. Of course exceptions can be justified as being in the "best interests" of a child.  Very many adopted children would attest to that.  But our law ought not to facilitate the deliberate breaching of the parent-child biological bond.

If we thought that by legalising commercial surrogacy in Australia we could give surrogacy an ethically sound underpinning we would be deceiving ourselves.


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