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Surrogacy in Australia – a missed opportunity

13 June 2016
By Stephen Page
Stephen Page is a surrogacy lawyer in Brisbane, Australia
Appeared in BioNews 855

Following several high-profile cases involving surrogacy – including the Baby Gammy scandal, in which a baby born through surrogacy in Thailand was falsely alleged to have been abandoned by the intended parents (see BioNews 847) – the Australian parliament recently set up a federal parliamentary inquiry into surrogacy.

It reported its findings last month and concluded that commercial surrogacy in Australia should remain banned and that there should be national, non-discriminatory surrogacy laws. It would also make it harder for Australians to undertake surrogacy in developing countries.

The inquiry report recognised the difficulties facing those looking for a surrogate in Australia. Only altruistic surrogacy is permitted and there are prohibitions on advertising, as well as different laws in different states, which 'add to the strain'. The reports states:

'Often exhausting their domestic options, some Australians choose to bypass the domestic route in favour of pursuing their goal to have a family through offshore commercial surrogacy.'

In an attempt to address these problems, the inquiry recommended setting up a government register of surrogates and intended parents to make it easier for Australians to undertake surrogacy without having to travel abroad. Although the reforms are welcome, they do not go far enough, because they fail to recognise the reality – there will continue to be a huge shortage of surrogates. 

Surrogacy advocate Sam Everingham says that, in 2014, there were just 35 babies born through altruistic surrogacy in Australia, but over 400 born internationally. Other estimates of Australian children born through overseas surrogacy range from 200 to 1000 per year. Even if there were 350 surrogates available on a government-run register each year, this would not cure the problem. If, by these measures, the government is able to increase the number of Australian surrogates by ten times, they will have achieved the equivalent of the second miracle of the loaves and fishes!

In reality, the current status of Australia as the world's largest exporter of intended parents for surrogacy per capita is likely to remain. The only solution is to allow surrogates to be paid. (The committee did recommend that there be greater clarification on what expenses surrogates can be paid. Whether this will be clear enough to encourage women to be surrogates remains to be seen.)

The inquiry, held by the House of Representatives Select Committee on Social Policy and Legal Affairs and chaired by George Christensen MP, raised concerns about the potential for exploitation of both surrogates and children, particularly in the context of surrogacies that took place in developing countries. The report was delivered only a short time after the judgment in the Baby Gammy case was handed down.

In that judgment there was criticism of commercial surrogacy (which in that case had occurred in Thailand, without screening or legal advice, and with a surrogate who had falsely put up her age so that she could be a surrogate). However, the situation in Thailand is quite different and, in my view, Australia is quite capable of regulating commercial surrogacy while protecting the human rights of all concerned.

The recommendations in the inquiry report also mean that Australian intended parents would have to prove to Australian officials that they have not broken either Australian law or the law in the country where the surrogacy arrangement has taken place, before they can bring their children into Australia. In seeking to protect children, such reforms might mean that children could be left stateless, in breach of Australia's international obligations under the International Convention on the Rights of the Child. There have been a number of examples worldwide of children being left stateless because of insufficient thought on the part of the countries involved. In seeking to regulate the conduct of the adults, they have not considered the impact on innocent children.

The inquiry also raised the possibility that children might have on their birth certificates not only the details of their parents, but also those of their surrogate and her partner and that of the child's genetic history. If this recommendation is accepted, it would be a world first. What impact this might have on a child in enrolling at school or later seeking employment was not discussed.

It is likely that, if the recommendations of the inquiry are accepted by federal, state and territory governments, then the current laws in some states banning Australians from undertaking commercial surrogacy overseas will be repealed. Those laws have been criticised by the two heads of Australia's family law system – Chief Justice Diana Bryant of the Family Court of Australia and Chief Judge John Pascoe of the Federal Circuit Court of Australia – as ineffective because many Australians from those states have undertaken commercial surrogacy overseas, and no one has been prosecuted.

The recommendations, if followed, will not solve the problem of Australians going overseas in great numbers. The law of supply and demand, and desperate intended parents, dictates otherwise. That is why, in my view, this latest inquiry has been a missed opportunity. Only when we have accepted the necessity of commercial surrogacy arrangements will we solve the problem once and for all.

14 January 2019 - by Kulraj Singh Bhangra 
The Lok Sabha, India's lower house, has passed a bill that bans commercial surrogacy...
23 October 2017 - by Dr Mary Yarwood 
A surrogate from Queensland, Australia has had her parental rights removed after a judge decided it was in the baby's best interests...
25 September 2017 - by Dr Iain Brassington 
The implausibilities of this series ought not to detain us too long. For there are deep and troubling questions that the series raises. What is it to be a 'real' mother?...
7 August 2017 - by Jen Willows 
An Australian nurse has been given a prison sentence after being found guilty of running an illegal surrogacy service in Cambodia...
9 May 2016 - by Antony Starza-Allen 
A federal parliamentary committee in Australia has recommended that commercial surrogacy should remain illegal in the country, but that altruistic surrogacy should be regulated at a national level...
18 April 2016 - by Julianna Photopoulos 
A court in Western Australia has ruled that the twin sister of Baby Gammy, who was born to a Thai surrogate in 2013, should remain with her parents in Australia...
27 April 2015 - by Professor Jenni Millbank 
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...
23 February 2015 - by Julianna Photopoulos 
Thailand's parliament has passed a law banning surrogacy for foreign couples, after two scandals sparked worldwide attention last year...
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