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Gammygate II: Surrogacy law must not be based on the latest tabloid story

27 April 2015
By Professor Jenni Millbank
Professor of Law, University of Technology, Sydney
Appeared in BioNews 799

As far back as 1990, the short-lived National Bioethics Consultative Committee noted that surrogacy has received vastly disproportionate attention in Australia given its infrequent occurrence. In less than 30 years we have seen 27 public inquiries and at least 17 different laws passed. Many thousands of media articles and current affairs stories have been penned and filmed. 'Baby Gammy' in Thailand led to massive international press coverage (seeBioNews 765) and a 'moral panic' about eligibility for intended parenthood. And now revelations of a baby boy left behind in India (see BioNews 775) while his twin sister was taken home to Australia have reignited already heightened concerns about the legality and ethics of international surrogacy. But these cases should not be used as the basis for an emotional knee-jerk wave of reforms in what is a complex and highly specialised area of law. I say this because we have been there before.

The first wave of Australian surrogacy laws in the 1980s were a hasty and ill-considered reaction to a few highly publicised international commercial surrogacy cases, including 'Baby Cotton' in the UK and 'Baby M' in the USA. For example, the 1988 Report of the NSW Law Reform Commission recommended that 'surrogate motherhood should be discouraged by all practicable legal and social means'. In 1991 the Minister for Community Services in Victoria made a public speech in which she likened all forms of surrogacy to slavery. Queensland criminalised all surrogacy, paid or unpaid, domestic or international, in legislation that stayed on the books for 20 years. As a result of these emotional and instinctive reactions, until the late 2000s there were only two jurisdictions in Australia where surrogacy with the use of IVF) could be undertaken, and throughout the country children born through surrogacy here and elsewhere were unable to have a legal relationship to the parents who raised them. 

In the 2000s the second wave of reforms surrogacy came in from the cold. It is no longer seen as an inherently dangerous and exploitative enterprise, threatening the stability and naturalness of family life. Instead it was reinscribed as a legitimate last-resort cure for infertility, preferably (but not exclusively, at least not in most states) for heterosexual couples. Laws across Australia all allow surrogacy only if the surrogate is not paid above reasonable expenses and there are no paid intermediaries. These new laws were debated in seven states over seven years involving over 200 different parliamentary speakers. Mentioning such media stories as the success story of the Kirkman sisters in Victoria in the 1980s and the respectable Senator Conroy 'forced' to travel within Australia for IVF treatment for surrogacy in the late 2000s. Only four parliamentary speakers referred, even in passing, to any of the published research on surrogacy families.

When Linda Burney spoke in the New South Wales parliamentary debates on surrogacy laws in 2010 saying 'We have all read, particularly in women's magazines' about surrogacy, she was not alone. The debates were replete with references to surrogacy stories in the press, and there was also a multitude of references to common sense, common knowledge, emotion, heart and instinct by lawmakers. Indeed one MP in South Australia evidenced the importance of genetic identity through twice reading into the parliamentary record the entirety of one of her children's favourite books - 'Are You my Mother?' by PD Eastman - in which a baby bird whose mother has gone to get him some food unexpectedly hatches from his egg and goes on a journey in which he asks various other animals and inanimate machines whether they are his mother.

Anecdotes are interesting, feelings are important, tragic cases can be a wake-up call, and 'Are you my mother?' is a glorious and timeless children's classic. But, frankly, legislation that will likely affect thousands of people and stay in place for decades should not be made on the basis of any of them.

Listening to the experiences and views of those most affected is a crucial part of any truly responsive process of law reform, but in the absence of consideration of the broader research, taking one tragic or exceptional story from the press is misleading and irrational. The bigger picture is lost. There is no perfect surrogacy law, and there is no quick fix to the complex challenges posed by cross-border reproductive practices more broadly. A considered and long-term response has to involve more than simply reacting to the latest case to hit the news, no matter how compelling it may be.

Millbank, J. (2012) From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of 'New' Surrogacy in Australia
Griffith Law Review 21, pp101-136 |  4 July 2012
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26 January 2015 - by Julianna Photopoulos 
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