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According to merit? A world of surrogacy options

Every Issue

Cite as: (2008) 82(6) LIJ, p. 92

Surrogacy arrangements are not just an issue for Australian states – there are also worldwide implications.

Surrogacy is an arrangement where the pregnancy is carried in the womb of a woman who terminates her parental rights at the birth of the child. Such arrangements have been around since time immemorial.

Advancements in assisted reproductive techniques have broadened the scope of available surrogacy permutations.1

This separation of the genetic and gestational aspects of the reproductive process has increased the potential for commercial surrogacy agreements where the surrogate is paid over and above necessary medical expenses, as opposed to altruistic surrogacy agreements where the surrogate is paid only necessary medical expenses and at times nothing at all.

Non-commercial surrogacy arrangements are legal in some states of Australia.

Commercial surrogacy is uniformly against the law, although altruistic surrogacy is available in Victoria, the ACT, Tasmania and South Australia. A Bill is before the Western Australian Parliament to permit altruistic surrogacy. Neither New South Wales nor the Northern Territory have legislation regulating surrogacy.

Neither form of surrogacy is legal in Queensland and Tasmania but a Parliamentary Committee of Inquiry in Queensland is investigating the decriminalisation of altruistic surrogacy.

A uniform approach to surrogacy is the subject of review by the Standing Committee of Attorneys-General which is currently conducting public consultations for the development of a national framework for the legalisation of altruistic surrogacy.2

Altruistic surrogacy relies on an individual or couple who wish to have a baby, but are unable to do so, finding a woman who is prepared to carry a baby to term on their behalf.

Being in a position where it is too late to have her own baby and IVF is not an option is a position women are increasingly finding themselves in, due to the conflict of building their careers at the same time as they are biologically able to have children.

Some women and men are looking to commercial surrogacy when faced with this problem and the lack of available altruistic surrogates. Commercial surrogacy is available in some US states and some European countries but is cost driven.

India encourages commercial surrogacy which it legitimised in 2002 and is a popular alternative because of the lower costs.

However, surrogacy agreements have the propensity to exploit women with weaker bargaining power.

Few Indian women would have their own children in a hospital or receive adequate health care throughout their pregnancies. Yet, for their commercial pregnancies where the commodity needs to be guaranteed to have received the best possible health care, Indian women are receiving the best possible health care. This raises issues of both discrimination and resource utilisation.

If a child is born under a commercial surrogacy agreement where the child is the commodity for whom valuable consideration is received, does this amount to a commercial transaction or sale? Article 35 of the UN Convention on the Rights of the Child requires states’ parties to take all appropriate measures to prevent the sale or traffic of children for any purpose or in any form.

In addition, to whom should the parental rights be conferred once the child is born? What happens where the child is disabled and the commissioning parents no longer want it?

A surrogate mother who wishes to enforce the agreement will have difficulty pursuing payment over international borders with limited funds, knowledge of the legal system and support to make a claim. She may not want the child either. What happens to the child in a country where orphanages are already over capacity and underfunded? There is also the question of whether the welfare of the child is of paramount importance in surrogacy arrangements.

Our acceptance of commercial surrogacy agreements in the US and relative concern about their effect in India may result from our perspective on the increased employment and welfare opportunities women in the US have compared to women in India.

The platform of basic social, economic and political rights enables US surrogates comparatively ready access to education and health services, respect of their reproductive rights and access to other human rights such as the highest available standard of health care, clothing, food and shelter. This basic platform allows them greater liberty and opportunity for a self-directed life. Choices they make are more likely to be voluntary and autonomous.

By comparison, many Indian women are in a position where although their agreement to act as a surrogate may be voluntary in a rational sense, i.e. they are aware that they will be carrying a baby for another who will assume parental rights to the child, they may also be prepared to take on the associated stigma, emotional upheaval and physical detriment because they feel they have limited alternatives.

However, it is the lack of basic human rights afforded these women that places them in the position where employment as a surrogate appears to be the best of all possible options. The compensation is so significant and their alternatives so limited that any voluntariness or autonomy is vitiated.

Most human rights dilemmas involve an intersection of competing rights: the right of a child to know his or her parents, the right of the surrogate mother to be able to feed, clothe and house her own family, the right of infertile people to found a family.

When looking at surrogacy options in Australia, perhaps we need also to consider whether it is appropriate to allow Australians to access commercial surrogacy agreements elsewhere.

LIZ BISHOP is completing her SJD at Monash University and is tutoring in administrative law and legal ethics for medical students.

1. Types of surrogacy – commissioning couple’s sperm and ova, commissioning couple’s sperm or ova fertilised with donor ova or sperm, surrogate mother’s ova and commissioning parent’s sperm and surrogate mother’s ova fertilised with donor sperm .

2. Standing Committee of Attorneys-General Communiqué, 28 March 2008: http://www.attorneygeneralgov.au/ www/ministers/robertmc.nsf/Page/RWPA7434F9ED00, accessed 22 April 2008.

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