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Opinion: When children are left behind


Cite as: August 2015 89 (8) LIJ, p.27

Allowing for commercial surrogacy in Australia is not a simple way forward.

Calls for Australia to meet its own reproductive needs, rather than outsourcing them to low-income countries including India, Thailand and Nepal, have followed a number of high-profile commercial surrogacy debacles in recent years.

These debacles include the abandonment in Thailand of baby Gammy, a young boy with Down syndrome by his Australian commissioning parents who chose to return to Australia with only his genetically “normal” sister. Sex selection is at the heart of a case that also undermines our capacity to ignore the ethical and moral dilemmas that arise with outsourced commercial surrogacy: a couple travelled to India late in 2012 seeking citizenship for a baby girl born to an Indian surrogate mother but told consular staff they would be leaving her twin brother behind because they could not afford him, and they already had a son at home and wanted to “complete their family” with a girl.

Chief Justice of the Federal Circuit Court John Pascoe has called for further investigation into the whereabouts of the boy, who was reportedly surrendered for adoption: “I would imagine there’d be a number of reasons why the police should be involved and obviously the welfare authorities as well . . . I would have thought also that Australia has some obligation to track down and look after the welfare of the child that has been left behind.” 1 Â

The case is complex and while there are strong moral arguments for Australia’s responsibility to the boy born of the Australian couple to a surrogate mother in India, the legal obligations are far less certain. Commercial surrogacy’s focus on the interests of commissioning parents has resulted in many stateless children and provides grounds for an international response to protect the rights and interests of children.

Chief Justice of the Family Court Diana Bryant is among the voices calling for a reopening of the commercial surrogacy debate in Australia: “As a community and a society we need to be pressing our government to regulate and I think we should allow commercial surrogacy in Australia so that Australians can make commercial arrangements within Australia and we can properly regulate it.”2

However, before we respond to this call, we need to consider a number of questions. How would we propose that commercial surrogacy should be regulated to prevent instances like those outlined above? What rights need to be prioritised? How can we best protect those rights?

We need to consider rights such as those of the surrogate mother to work and to provide for her own family, and those of the child to identity, status and to know his or her parents and family. In this debate some characterise the desire of commissioning parents for children of their own as rights. However, examination of the right to privacy, the right to found a family and the right to benefit from scientific progress do not together construct a right to achieve a family by means of scientific progress.

A number of academics suggest informed consent is the most appropriate model for regulating commercial surrogacy. But what is informed consent? There are differences between informed consent for the purposes of contract law and for the purposes of medical research. While the preconditions of informed consent for medical research, based on respect for the autonomy of the surrogate mother, might come closer to a workable version of informed consent for the purpose of surrogacy, even they do not provide a straightforward solution.

It is about time we question our earlier indifference to the rights of children born overseas through commercial surrogacy arrangements and our responsibilities to them as future Australian citizens, but allowing for commercial surrogacy arrangements in Australia is not a simple way forward. An intractable problem is that of compensation or payment for the surrogacy arrangement. However construed, any payment to the surrogate mother, above the pregnancy-related expenses, is transfer of a child by any person for remuneration or other consideration. This violates Article 2(a) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, which leaves no loophole declaring it to be null and void if the transfer is with the best of intentions. Accordingly, any move towards commercial surrogacy in Australia puts us at risk of violation of our international obligations.

Dr Liz Bishop is a lecturer and researcher at the Michael Kirby Centre for Public Health and Human Rights, Monash University.



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