tag:theconversation.com,2011:/au/topics/commercial-surrogacy-11976/articlesCommercial surrogacy – The Conversation2022-03-22T01:05:00Ztag:theconversation.com,2011:article/1796522022-03-22T01:05:00Z2022-03-22T01:05:00ZRussia’s invasion is wreaking havoc with surrogacy in Ukraine. It shows why Australia must change its laws<figure><img src="https://images.theconversation.com/files/453198/original/file-20220321-19-h9429x.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6000%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Russia’s invasion of Ukraine is a nightmare for prospective parents engaged in surrogacy arrangements in the country.</p>
<p>Ukraine has become a popular destination for surrogacy. While exact numbers are difficult to obtain, it’s <a href="https://www.bionews.org.uk/page_162770">estimated</a> between 2,000 and 2,500 babies are born each year via surrogacy in Ukraine. </p>
<p><a href="https://biotexcom.com/">BioTexCom</a>, one of the largest fertility clinics in Ukraine, is <a href="https://www.theatlantic.com/health/archive/2022/03/russia-invasion-ukraine-surrogate-family/623327/">expecting 200 babies</a> to be born via surrogacy by the end of May. </p>
<p><a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">More than ten Australian families</a> are expecting babies to be born via surrogacy in Ukraine by the first week of May.</p>
<p>But it’s currently extremely challenging for such parents to cross the border into Ukraine to meet their babies. This is a disaster for the babies, the surrogates and the intended parents.</p>
<p>The babies are left in limbo, born into a war zone without their parents to look after them. The surrogates have to give birth in a war zone and then aren’t able to hand the babies over to the intended parents.</p>
<p>As for the <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">intended parents</a>, one can hardly imagine how distressing it must be to know your baby has been born, or is about to be born, but not know how or when you can reach them.</p>
<p>The situation highlights why Australia must change its surrogacy laws.</p>
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<h2>Why are Australians travelling to Ukraine for surrogacy?</h2>
<p>Ukraine is a popular surrogacy destination for several reasons. </p>
<p>One is <a href="https://www.sensiblesurrogacy.com/surrogacy-in-ukraine/#surrogacy-cost-ukraine">financial</a>. Surrogacy in Ukraine is more affordable than in the United States, for example. Surrogacy in Ukraine is <a href="https://www.abc.net.au/news/2018-12-15/inside-ukraines-surrogacy-industry/10614172">estimated</a> to cost approximately USD $40,000 (A$54,000), whereas surrogacy in the United States <a href="https://www.creatingfamilies.com/parent/surrogacy-costs/">can cost</a> as much as USD $150,000 (A$202,000). </p>
<p>Another is <a href="https://www.sensiblesurrogacy.com/surrogacy-in-ukraine/#surrogacy-cost-ukraine">legal</a>. Under Ukrainian law, unlike in Australia for example, the intended parents are recognised as the legal parents of a child born through surrogacy at birth.</p>
<p>Although it’s worth noting only heterosexual married couples are able to access surrogacy in the country.</p>
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Read more:
<a href="https://theconversation.com/arrests-and-uncertainty-overseas-show-why-australia-must-legalise-compensated-surrogacy-69203">Arrests and uncertainty overseas show why Australia must legalise compensated surrogacy</a>
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<p>For the vast majority of people, surrogacy isn’t their preferred way to have a child, but an <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">option of last resort</a>.</p>
<p>For example, for one Australian couple, the topic of a recent Sydney Morning Herald <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">article</a>, surrogacy was their only option. They’d lost three pregnancies, and their use of surrogacy in Ukraine was the culmination of an excruciating six-year journey.</p>
<h2>Australian laws encouraging cross-border surrogacy</h2>
<p>The stress involved in cross-border surrogacy highlights this further. The vast majority of Australians who travel overseas to access surrogacy arrangements would prefer to do so back home, but <a href="https://www.surrogacyaustralia.org/australian-surrogacy-legislation/">Australian law</a> presents a significant obstacle.</p>
<p>In Australia, only “altruistic surrogacy” is permitted, where the surrogate mother doesn’t benefit financially from the arrangement.</p>
<p>But “compensated” or “commercial” surrogacy, where the surrogate does receive a financial benefit, is prohibited. </p>
<p>The prohibition of compensation is problematic for a number of reasons. From the perspective of the surrogate, it’s inherently exploitative to refuse to allow a woman to be paid for her reproductive labour. And the obsession with “altruism” amplifies problematic stereotypes and expectations of the “self-sacrificing woman”. </p>
<p>From the perspective of intended parents, the prohibition of compensation has led to a predictable dearth of Australian women willing to become surrogates.</p>
<p>This has fuelled the popularity of cross-border compensated surrogacy, which is illegal for residents of New South Wales, Queensland and the ACT but widely undertaken.</p>
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<img alt="Couple embracing with ultrasound image of baby" src="https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">For some, surrogacy is their only option.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<h2>What’s the solution?</h2>
<p>All Australian states and territories should amend their laws to allow for compensated surrogacy.</p>
<p>Regulating behaviour that is already occurring, and to which law enforcement is <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">turning a blind eye</a>, has three key benefits:</p>
<ol>
<li><p>regulation ensures the rights of all parties are protected properly. Regulation in Australia can prevent exploitation abroad</p></li>
<li><p>in a country like Australia, which has a social safety net in place to protect those who are most vulnerable, the question of compensation can be separated from exploitation</p></li>
<li><p>compensation is a matter of justice. It’s unjust to allow many of the people involved in providing surrogacy – clinics, lawyers, counsellors and others – to be compensated for their time and services, but not the person doing the most labour and assuming the greatest risk.</p></li>
</ol>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"700186754876309509"}"></div></p>
<p>The anxiety around legalising and regulating compensated surrogacy in Australia <a href="https://legal.thomsonreuters.com.au/critical-perspectives-on-human-rights-law-in-australia-volume-2-book/productdetail/127776">does not make sense</a>.</p>
<p>Australia’s legal system has the capability to do this, and in doing so, would minimise the risk of exploitation. </p>
<p>This would also likely reduce the number of Australians going overseas for compensated surrogacy, with the risks and stressors that comes with that.</p>
<p>The most sensible solution, and the solution that best protects the rights of all involved, is for Australia to properly regulate (rather than prohibit) compensated surrogacy arrangements so desperate intended parents aren’t forced overseas.</p><img src="https://counter.theconversation.com/content/179652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ronli Sifris does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia’s surrogacy laws encourage parents to look overseas. But Russia’s invasion of Ukraine - a popular surrogacy destination - shows the flaws of this approach.Ronli Sifris, Senior lecturer in law, Deputy Director of the Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1089992018-12-19T14:48:39Z2018-12-19T14:48:39ZCommercial surrogacy: lifting legal restrictions is the moral thing to do to help people trying to have babies<figure><img src="https://images.theconversation.com/files/251500/original/file-20181219-45403-19nvg35.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Restrictions on payments to surrogate mothers need to be lifted and the law clarified.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/avocado-parent-child-embrace-beside-another-578399509?src=JGWTTgXbM9SEAXlQ9zK0Pg-1-60">Shutterstock</a></span></figcaption></figure><p>When it comes to the controversial issue of surrogate motherhood – and, in particular, payment for such services – the law in the UK needs to be reviewed. So <a href="https://www.dailymail.co.uk/news/article-6450607/Let-women-paid-surrogate-mums-says-family-judge.html">says Sir James Munby</a>, the most senior judge in the Family Division in England and Wales until his retirement in 2017.</p>
<p>Many others including <a href="http://claradoc.gpa.free.fr/doc/229.pdf">myself</a> have been arguing this for years. It is a commonly held view – often repeated in the media – that commercial surrogate motherhood is illegal and that payment to a surrogate mother is a criminal offence. This is not the case.</p>
<p>Under the <a href="https://www.legislation.gov.uk/ukpga/1985/49">Surrogacy Arrangements Act (1985)</a>, it is not illegal for a couple to pay a surrogate to carry a baby for them and it is not illegal for the mother to accept payment. However, it is illegal for any other person to take or offer money in relation to surrogate motherhood.</p>
<p>Commercial surrogacy agencies are therefore illegal, as are the activities of individual commercial surrogacy agents. And such commercial deals will not be upheld by the courts. By the terms of the Surrogacy Arrangements Act and section 36(1) of the <a href="https://www.legislation.gov.uk/ukpga/1990/37/contents">Human Fertilisation and Embryology Act (1990)</a>, no surrogacy arrangement of any sort is enforceable in law.</p>
<h2>Benefits, ethics and expenses</h2>
<p>Couples involved with a surrogate can apply to the courts to become the legal parents of the carried baby. The law stipulates that this should be granted only if no money or equivalent benefit other than “<a href="https://webarchive.nationalarchives.gov.uk/+/http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_4009697">for expenses reasonably incurred</a>” has been paid by the couple to the surrogate mother, unless authorised in advance by the court. </p>
<p>But the courts tend to get around this law by authorising payments that come to their attention after the surrogacy process is over. There is an understandable reluctance to do anything that might disrupt a new family unit, but it is unsatisfactory to have such a discrepancy between the letter and the operation of the law. It does not promote trust in or respect for either. Things need to change so that the law surrounding surrogacy and what actually happens in surrogacy situations are in alignment.</p>
<p>To deprive biological parents using a surrogate the legal status of parenthood because they have paid more than what is deemed “reasonably incurred expenses” would clearly be draconian, arbitrary and cruel. This stipulation should be repealed.</p>
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<img alt="" src="https://images.theconversation.com/files/251497/original/file-20181219-45403-c6a0gd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/251497/original/file-20181219-45403-c6a0gd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/251497/original/file-20181219-45403-c6a0gd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/251497/original/file-20181219-45403-c6a0gd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/251497/original/file-20181219-45403-c6a0gd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/251497/original/file-20181219-45403-c6a0gd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/251497/original/file-20181219-45403-c6a0gd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Surrogacy is not against the law, as many people think.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/excited-married-couple-speaking-unborn-child-1109714675?src=JGWTTgXbM9SEAXlQ9zK0Pg-1-3">Shutterstock</a></span>
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<p>Is there any serious moral objection to commercial surrogacy agreements? Should we not legally enforce them? And why not also consider legalising the activities of commercial surrogacy agents and agencies? Those who believe that commercial surrogacy is unethical claim it exploits the surrogate mother, who is typically poorer than the would-be parents, who take advantage, and that it leads to the commodification of these babies. Neither argument is sound.</p>
<p>To exploit is not merely to take advantage of someone, but to do so in a deliberately wrongful way. For instance, it is coercive and exploitative if a mugger steals your watch. It is not coercive or exploitative if someone offers to buy a watch from you even if you are selling it because you are short of money. Desperation does not preclude the giving of valid consent. </p>
<p>Some particular commercial surrogate motherhood arrangements might be exploitative but they are not inherently so. For instance, it would be exploitation if a surrogate mother refused to hand over a child while also refusing to return the money she had been paid. Similarly, altruistic surrogate motherhood is not inherently exploitative but individual instances can be when, say, relatives or friends unfairly pressurise a woman. The legal enforceability of all surrogacy contracts might help to <a href="https://scholarship.law.duke.edu/lcp/vol72/iss3/6/">reduce the risk</a> of such exploitation. </p>
<p>A baby should never be treated as a commodity but as a moral end in itself. Commercial surrogacy <a href="https://link.springer.com/article/10.1023/A:1009494710517">does not breach</a> this moral principle. When money changes hands in commercial surrogacy arrangements, what is bought and sold are the services of the surrogate mother, and when they are legal, the services of the commercial surrogate motherhood agencies. It is not the babies that are bought and sold. </p>
<p>Commercial surrogate motherhood does not involve the purchase of parenthood any more than payment to a marriage agency for an introduction to a potential partner is the purchase of a spouse or a marriage. What matters here, crucially, is how people behave rather than how they become the parents of much-wanted babies.</p><img src="https://counter.theconversation.com/content/108999/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh McLachlan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The law needs to be more realistic about surrogacy services and payment, and reflect what is actually happening between couples and surrogates.Hugh McLachlan, Professor Emeritus of Applied Philosophy, Glasgow Caledonian UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/989662018-07-30T11:44:12Z2018-07-30T11:44:12ZSurrogacy laws: why a global approach is needed to stop exploitation of women<figure><img src="https://images.theconversation.com/files/229096/original/file-20180724-194131-1brr1r9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Surrogacy may have become a popular way for many couples in the limelight to have children – notably <a href="http://time.com/5070296/surrogacy-baby-kim-kardashian-kanye-west/">Kim and Kanye</a>, <a href="https://www.telegraph.co.uk/news/celebritynews/8228831/Elton-John-and-David-Furnish-become-parents-the-surrogacy-agency-used-by-high-profile-clients.html">Elton John and David Furnish</a>, as well as <a href="https://www.theguardian.com/lifeandstyle/2009/apr/30/sarah-jessica-parker-twins-surrogate">Sarah Jessica Parker and her husband Matthew Broderick</a>. But it isn’t just a service for the rich and famous.</p>
<p>People may choose to <a href="https://theconversation.com/surrogacy-what-you-need-to-know-about-having-a-baby-96147">use a surrogate for all sorts of reasons</a> – fertility issues being the obvious one – but people with health problems or complications with previous pregnancies as well as same-sex couples or single people looking to start a family, are all also common clients.</p>
<p>In the UK, altruistic (unpaid) <a href="https://www.legislation.gov.uk/ukpga/1985/49">surrogacy is legal</a>, but commercial (paid) surrogacy is not. At present, however, <a href="https://www.telegraph.co.uk/news/health/news/9292343/Revealed-how-more-and-more-Britons-are-paying-Indian-women-to-become-surrogate-mothers.html">Britons</a> are the largest consumers of the Indian commercial surrogacy industry. </p>
<p>Surrogacy is <a href="https://www.globalpolicyjournal.com/blog/27/11/2015/end-rent-womb-west">reported to bring in US$400m</a> every year to the Indian economy. But the Indian market has come under fire for being <a href="https://www.theguardian.com/science/blog/2017/mar/28/cross-border-surrogacy-exploiting-low-income-women-as-biological-resources">exploitative</a>. Indian surrogate mothers are typically poor, and are paid around <a href="https://www.theguardian.com/global-development/2016/apr/01/outsourcing-pregnancy-india-surrogacy-clinics-julie-bindel">£4,500</a> to carry a foetus to term. </p>
<p>The industry is also unregulated. This gives <a href="https://www.theguardian.com/global-development/2016/apr/01/outsourcing-pregnancy-india-surrogacy-clinics-julie-bindel">surrogacy clinics</a> a large amount of power and control over the process. Many surrogates are required to live in surrogacy hostels, run by clinics, <a href="https://www.bbc.com/news/magazine-24275373">for the duration of their pregnancy</a> – away from friends and family members. </p>
<h2>A change in the law</h2>
<p>India is in the process of outlawing commercial surrogacy in favour of an altruistic model, available to Indian nationals only. And surrogacy laws in the UK <a href="https://www.theguardian.com/lifeandstyle/2018/may/04/surrogacy-review-to-tackle-laws-declared-unfit-for-purpose">may also be set to change</a>. </p>
<p>The Law Commissions of England and Wales, and Scotland, recently commenced a three-year project to review and recommend improvements to surrogacy arrangements in the UK. One <a href="https://www.lawcom.gov.uk/surrogacy-laws-set-for-reform-as-law-commissions-get-government-backing/?platform=hootsuite">key area targeted for reform</a> is the way in which uncertainty in the law may be encouraging UK residents to look overseas for surrogates.</p>
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<p>It may not be enough for countries to amend their laws in isolation. Improvements of national laws are of course welcome, but a collective international response is preferable. This is because, even if the Indian bill passes – and the UK maintains its altruistic approach – this does not fix the problem. </p>
<p>Surrogacy agencies in India and elsewhere could <a href="https://theconversation.com/india-outlawed-commercial-surrogacy-clinics-are-finding-loopholes-81784">make use of loopholes</a> that exist in the law. Eggs, sperm, embryos, surrogates and intended parents could simply be moved across borders to countries where commercial surrogacy is not banned. What’s more, when one industry closes, another one can easily open elsewhere. This is the case in <a href="https://www.bioedge.org/bioethics/ukraine-a-new-surrogacy-hotspot/12607">Ukraine</a>, which is fast becoming a surrogacy hot spot now that other countries have banned the practice. </p>
<h2>Defining infertility</h2>
<p>Another factor to consider in all of this, is the <a href="https://www.telegraph.co.uk/news/2016/10/19/single-men-will-get-the-right-to-start-a-family-under-new-defini/">World Health Organisation’s</a> proposal to change the definition of infertility. This would move it away from a clinical disease-based definition – where it is viewed as a disability – to a view that includes a more social definition, recognising it as a “right to reproduce”.</p>
<p>Under the new definition, <a href="http://www.who.int/reproductivehealth/topics/infertility/definitions/en/">infertility would no longer be </a> seen as “the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse”. Rather, it would also be considered to <a href="https://www.telegraph.co.uk/news/2016/10/19/single-men-will-get-the-right-to-start-a-family-under-new-defini/">include cases when</a> “single men and women without medical issues … do not have children but want to become a parent”.</p>
<p>As yet, the proposed definition has not been <a href="http://www.health.com/infertility/infertility-definition-change">officially adopted by the WHO</a>. In fact, the WHO has stated that it will retain a clinical focus and refrain from making recommendations about <a href="http://www.who.int/reproductivehealth/topics/infertility/multiple-definitions/en/">fertility service provision</a> – even if there were to be a change to its definition. </p>
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<img alt="" src="https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">India has outlawed commercial surrogacy, but clinics are finding loopholes.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>Hypothetically, the result of this change would mean that those who fall under the new social account of infertility could also receive access to reproductive services. On the one hand, this is a progressive move – why shouldn’t single men and women and same-sex couples receive help to become parents? </p>
<p>But on the other hand, <a href="https://www.newstatesman.com/politics/feminism/2016/10/no-single-men-do-not-have-right-reproduce">there are concerns</a> that the expanded definition <a href="https://www.huffingtonpost.co.uk/julian-vigo/the-world-health-organisa_b_12725214.html">ignores the gender dynamics</a> inherent to the provision of reproductive services. </p>
<h2>A right to a womb</h2>
<p>Any change in the law needs to recognise that it is women’s bodies alone that can perform this “service”. In the case of male gay couples, who cannot carry a foetus themselves, women’s bodies will be necessary in order to treat a couple’s infertility. This could be either through international paid surrogacy, or the domestic altruistic model.</p>
<p>If this definition does take hold, there may well be an increase in the demand for surrogacy services and the further liberalisation of surrogacy laws <a href="https://www.huffingtonpost.co.uk/julian-vigo/the-world-health-organisa_b_12725214.html">to cater for this demand</a>. Expanding access to reproductive services could lead to an increase in exploitation, health risks and the further commodification of women’s bodies. And without proper acknowledgement that it is women who will carry out the labour involved in gestating a child, a key ethical concern is neglected. </p>
<p>This is why there needs to be an <a href="https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy">international consensus on surrogacy</a> – and a joined-up approach to the law. There may well be difficulties in getting people from different places, cultures or backgrounds to agree the demand for and effects of current surrogacy practices, but surrogacy deserves a global conversation.</p><img src="https://counter.theconversation.com/content/98966/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Herjeet Marway is Chair of the Ethics Committee for Surrogacy UK. </span></em></p><p class="fine-print"><em><span>Gulzaar Barn has previously received funding from the Wellcome Trust to carry out research relating to surrogacy in India.</span></em></p>The surrogacy industry needs international regulation to stop the exploitation of women’s bodies.Herjeet Marway, Lecturer in Global Ethics, Department of Philosophy, University of BirminghamGulzaar Barn, Lecturer in Philosophy, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941972018-04-02T22:18:05Z2018-04-02T22:18:05ZPaying surrogates, sperm and egg donors goes against Canadian values<figure><img src="https://images.theconversation.com/files/212772/original/file-20180401-189804-15d9agr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Canadian politician has announced he plans to introduce a private member’s bill to remove the legal prohibitions on payments to surrogate mothers and to sperm and egg donors.
</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>In Canada, it’s illegal to pay for the services of a surrogate mother or to purchase human gametes — sperm and eggs. These prohibitions are entrenched in the <a href="http://laws-lois.justice.gc.ca/eng/acts/a-13.4/">Assisted Human Reproduction Act</a>. Some Liberal members of Parliament want to change this.</p>
<p><a href="http://www.ourcommons.ca/Parliamentarians/en/members/Anthony-Housefather">Anthony Housefather</a>, MP for Mount Royal and chair of the House of Commons Standing Committee on Justice and Human Rights, recently held a <a href="https://www.facebook.com/anthonyhousefather/videos/1877831872257893/">news conference</a> to announce that he plans to introduce a private member’s bill to remove the legal prohibitions on payments.</p>
<p>Flanked by fertility doctors, lawyers, intended parents, surrogates and fertility agents, Housefather argued that Canadians should be able to pay — and be paid — for surrogacy, as well as human sperm and eggs.</p>
<p>But the planned private member’s bill is <a href="http://www.cbc.ca/player/play/1197697091796">ill-conceived</a> (pun intended) <a href="https://impactethics.ca/2018/04/02/lets-ask-a-different-question-about-surrogacy/">for several reasons</a>.</p>
<h2>‘Sound ethical reasons’</h2>
<p>At the outset, it’s important to remember there are sound ethical reasons to prohibit “<a href="http://laws-lois.justice.gc.ca/eng/acts/a-13.4/page-1.html#h-2">trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends</a>,” as stated in the Assisted Human Reproduction Act. </p>
<p>Among these reasons are the need to avoid both the commodification of the human body and the twin risks of exploitation and coercion. That’s why the federal government introduced criminal prohibitions on payment for surrogacy as well as human sperm and eggs in 2004. </p>
<p>Why criminal prohibitions? Because according to our Constitution, the only mechanism available to the federal government to enforce a ban on payment is criminal law. The division of powers between the federal and provincial governments is such that health is a provincial responsibility and criminal law is a federal responsibility. </p>
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<img alt="" src="https://images.theconversation.com/files/212771/original/file-20180401-189821-1fju5u7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/212771/original/file-20180401-189821-1fju5u7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212771/original/file-20180401-189821-1fju5u7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212771/original/file-20180401-189821-1fju5u7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212771/original/file-20180401-189821-1fju5u7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212771/original/file-20180401-189821-1fju5u7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212771/original/file-20180401-189821-1fju5u7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Anthony Housefather, MP for Mont Royal, says he plans to introduce a private member’s bill to remove the legal prohibitions on payments to surrogate mothers or for sperm or eggs.</span>
<span class="attribution"><span class="source">Liberal.ca</span></span>
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<p>The Assisted Human Reproduction Act was carefully drafted to ensure that access to reproductive technologies would not be a gateway to commerce in the body. This was a challenging piece of legislation to craft, involving considerable study, consultation and compromise. </p>
<p>The process began in the mid-1980s with the call for a <a href="http://www.thecanadianencyclopedia.ca/en/article/new-reproductive-technologies-royal-commission-on/">Royal Commission on New Reproductive Technologies </a> and continued through the 1990s and into the 2000s. It included numerous consultations with stakeholders and the public, several failed attempts at legislation and very careful consideration of how this issue should move forward.</p>
<h2>Act outdated?</h2>
<p>When the act finally passed 14 years ago, there was all-party agreement that payment for surrogacy and sperm and eggs was not the way forward. </p>
<p>Housefather suggests that the act is outdated; that it did not anticipate the creation of non-traditional families. But this is inaccurate. </p>
<p><a href="https://www.dailyxtra.com/gay-bloc-mp-real-menard-leaves-federal-politics-35895">Réal Ménard,</a> for example, one of the first openly gay MPs, worked with members of the LGBTQ community to ensure that sexual orientation would not be a barrier to access. It’s important not to ignore or misrepresent the intense challenges of a legislative process that was nearly 30 years in the making. </p>
<p>Housefather also suggests that Canadian values have changed since the act came into force. However, recent public commitment to <a href="http://www.cbc.ca/radio/thesundayedition/the-sunday-edition-march-4-2018-1.4559064/canadian-blood-services-ceo-responds-to-listener-mail-1.4559077">keeping payment out of the blood supply system</a> indicates that Canadian values about payment for bodily tissues may not have changed all that much.</p>
<p>The Assisted Human Reproduction Act permits reimbursement of receipted expenditures for surrogates and gamete donors in accordance with regulations. The problem with this feature of the act, however, is that there are no published regulations. This is finally about to change. </p>
<p>After many years of inaction, Health Canada has made a public commitment to <a href="https://www.canada.ca/en/health-canada/programs/consultation-assisted-human-reproduction/document.html">strengthen the Assisted Human Reproduction Act</a> that includes drafting the regulations for reimbursement. </p>
<p>These long-anticipated regulations will provide much-needed clarity and transparency. Housefather’s proposed bill will undermine the development of the regulations by attempting to eliminate the framework for reimbursement completely. </p>
<p>The federal government has an obligation to address the health and safety of surrogates, sperm donors and egg donors. It also has an obligation to provide clear regulations on reimbursement of expenditures so that Canadians who want to use surrogates and donor sperm and eggs can do so without running afoul of the law. </p>
<p>The governance of assisted human reproduction is too important to the future of Canadian families to be undermined by a private member’s bill calling for an open market in human reproduction.</p><img src="https://counter.theconversation.com/content/94197/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Françoise Baylis has received research funding from CIHR and the Canada Research Chairs program</span></em></p><p class="fine-print"><em><span>Alana Cattapan has received funding from the Social Sciences and Humanities Research Council, the Canadian Institutes of Health Research, and the Saskatchewan Health Research Foundation. She is on the Board of the Canadian Research Institute for the Advancement of Women. </span></em></p>There are sound ethical reasons behind Canada’s decision to ban payment to surrogate mothers and sperm and egg donors in 2004. A new push to remove the restrictions ignores the risks.Françoise Baylis, Professor and Canada Research Chair in Bioethics and Philosophy, Dalhousie UniversityAlana Cattapan, Assistant Professor, Johnson Shoyama Graduate School of Public Policy, University of SaskatchewanLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/817842017-10-23T16:20:11Z2017-10-23T16:20:11ZIndia outlawed commercial surrogacy – clinics are finding loopholes<p>Would you pay someone US$150,000 to have your baby?</p>
<p>The <a href="https://www.nytimes.com/2014/07/06/us/foreign-couples-heading-to-america-for-surrogate-pregnancies.html">high cost</a> of surrogacy in the U.S. has pushed many potential parents to seek cheaper options elsewhere. Countries like India and Thailand have attracted surrogacy clients from countries like the U.S., Britain, Australia and Israel. The global surrogacy trade, however, <a href="http://www.abc.net.au/news/2014-08-04/baby-gammy-surrogate-mum-says-parents-saw-baby-in-hospital/5647440">has been fraught</a> with <a href="https://www.geneticsandsociety.org/biopolitical-times/complications-surrogacy-case-baby-manji">scandals</a>.</p>
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<p>In India, where <a href="https://nyupress.org/books/9781479825325/">I’ve studied surrogacy</a> since 2008, the government is rethinking regulations. Gay couples were banned from using commercial surrogacy <a href="http://www.bionews.org.uk/page_242618.asp">in 2012</a>. In March 2017, the Indian government <a href="http://www.prsindia.org/billtrack/the-surrogacy-regulation-bill-2016-4470/">extended the commercial ban to everyone</a>. Now, only so-called “altruistic surrogacy” is allowed – when a consenting female family member bears a child for a childless heterosexual Indian couple <a href="https://www.huffingtonpost.com/entry/why-indias-new-surrogacy-bill-is-bad-for-women_us_57c075f9e4b0b01630de83ad">without pay</a>.</p>
<p>But what impact are bans on commercial surrogacy having for women who work in the reproductive industry?</p>
<h2>Downsides of commercial surrogacy</h2>
<p>Some bioethicists and feminists have welcomed <a href="http://www.bioethics.net/2017/06/inherent-problems-with-commercial-surrogacy-in-india/">bans on commercial surrogacy</a>. They argue that it’s unethical to build businesses on women’s reproductive capacities.</p>
<p>Surrogacy businesses in India almost exclusively focused on the needs of the client.</p>
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<p>Destinations such as India became popular precisely because they offered surrogacy at bargain basement prices by paying surrogate mothers less. They offered preterm childbirth through cesarean surgeries in order to accommodate clients’ availability to take time off from work. They created barriers between surrogate mothers and clients to minimize the emotional costs for clients. This allowed clients to leave India with their babies – no strings attached.</p>
<p>Many bioethicists believe that selling pregnancy as a service is untenable because it puts a price on human body parts and life. Commercial surrogacy, they note, results in the <a href="http://www.bioethics.org.au/Resources/Online%20Articles/Opinion%20Pieces/1901%20Oh%20Baby%20Baby%20The%20Problem%20with%20Surrogacy%20MT.pdf">devaluation of women and children</a> and the eventual <a href="https://us.macmillan.com/books/9781250024190">degradation of society</a>. Thus, removing cash payment for surrogacy and instead endorsing it as an altruistic, gift-like exchange between transactors is seen as more ethical.</p>
<p>These arguments carry weight. Countries like <a href="http://www.obj.ca/article/when-having-baby-team-effort">Canada</a> and <a href="http://www.abc.net.au/news/2017-02-10/surrogacy-booming-in-australia-despite-legal-issues/8255966">Australia</a> allow only altruistic surrogacy.</p>
<h2>Downsides of bans</h2>
<p>Like other countries that provide commercial surrogacy, there were no legal requirements in India to provide statistics on how many clinics provided surrogacy services, the number of clients or women employed. What we do know is that the ban has slowed a brisk global trade in Indian working-class women’s reproductive capacities that is estimated to have garnered anywhere from <a href="http://www.businessinsider.com/india-surrogate-mother-industry-2013-9">$400 million</a> to <a href="http://www.sandiegouniontribune.com/sdut-surrogates-feel-hurt-by-indias-ban-on-foreign-2015nov17-story.html">$1 billion per year</a>.
The baby trade, however, does not stop with bans on commercial surrogacy. Instead, infertility clinics jump through legal loopholes by moving surrogate mothers across borders. These movements expose surrogate mothers to great risks. </p>
<p>For example, when India first banned surrogacy for gay couples in 2012, various infertility businesses in Delhi continued to sign on gay clients from all over the world. Clients shipped their frozen sperm to Delhi, which was used to fertilize eggs from Indian donors. The resulting embryos, legally belonging to the gay men, were implanted into Indian surrogate mothers. To avoid the ban, infertility clinics then moved surrogate mothers across international borders into Nepal. There, they gave birth and clients arrived to pick up their children. </p>
<p>This emerging trade route between Delhi and Kathmandu <a href="http://www.timesofisrael.com/after-new-nepal-quake-israel-to-evacuate-more-surrogate-born-babies/">halted when an earthquake hit Nepal</a> on April 25, 2015, killing 8,000 people and injuring more than 21,000. While various governments airlifted babies belonging to their citizens, the fate of the Indian mothers and how they got back home remains unclear.</p>
<p>I learned more about this type of workaround in conversations with a Mumbai-based infertility specialist in September 2015. The specialist, who will remain anonymous to protect confidentiality, revealed that he was recruiting surrogate mothers from Kenya to come to Mumbai. Through in vitro fertilization, he implanted the Kenyan women with embryos belonging to gay men. The women were then flown back to Nairobi after completing 24 weeks of pregnancy in India. They birthed babies in designated hospitals in Nairobi, from where gay father clients picked up the babies. The Mumbai doctor maintained that he had not broken the law, because technically, he had not interacted with gay clients within Indian territory, and all he had provided was in vitro fertilization for Kenyan “health-care” seekers.</p>
<p>News reports have documented a similar effect in Cambodia, where the government has begun to crack down on surrogacy <a href="https://www.bioedge.org/bioethics/australian-surrogacy-broker-jailed-in-cambodia/12372">earlier this year</a>. Now, surrogate mothers from Phnom Penh are being sent to Bangkok, Thailand <a href="http://www.scmp.com/week-asia/society/article/2096675/how-asias-surrogate-mothers-became-cross-border-business">to deliver babies</a>. Thai law bans commercial surrogacy transactions, but enforcement agencies are unable to distinguish surrogate mothers in hospitals from other pregnant women. Cambodian surrogate mothers are also being sent to Laos, where <a href="https://www.reuters.com/article/us-laos-surrogacy/wombs-for-rent-business-flourishes-in-communist-laos-idUSKBN18Y39R">there are no laws</a>, to deliver babies in clinics staffed by Thai doctors who once worked in Thailand when commercial surrogacy was still legal there.</p>
<p>Under these circumstances, women are far more vulnerable than before. They are wholly dependent on agencies that have brought them into countries where they are strangers and unfamiliar with the language, culture and social norms. Surrogacy agencies provide them with housing and food in these foreign countries. And they control the money. As a result, the women are powerless to terminate their contracts, or go back home if they choose to do so. They are isolated from friends and family and have no legal recourse to address financial abuses or medical malpractice.</p>
<h2>Human rights of surrogate mothers</h2>
<p>Country-specific bans do nothing to alleviate the vulnerability of working-class women across poor countries. Instead, these bans create situations where women may be exposed to far deeper mistreatment and exploitation. Governments might want to reconsider bans on commercial surrogacy.</p>
<p>One option is to negotiate multilateral agreements between countries to govern global surrogacy. Such international law would need to balance the rights of persons pursuing parenthood, children’s rights and surrogate mothers’ rights. But because of differences in countries’ <a href="https://theconversation.com/most-countries-score-an-f-on-our-lgbt-human-rights-report-card-78732">norms on gay rights</a> and surrogacy, international agreements are difficult to forge. </p>
<p>A more pragmatic solution for countries like India and Thailand would be to legalize commercial surrogacy but regulate it heavily. Rather than bans, governments should consider laws that uphold surrogate mothers’ sense of dignity and bodily integrity. Surrogate mothers should be treated as full human beings who have the right to choose how they get pregnant, the right to opt out of medical interventions, the right to refuse cesarean surgeries and the right to maintain contact with the babies they birthed. Commercial surrogacy is tenable only if surrogate mothers’ emotional, physical and intellectual well-being is respected.</p>
<p><em>Editor’s note: This article and video were produced in collaboration with <a href="https://www.newsdeeply.com/womenandgirls/about">News Deeply’s Women & Girls</a>.</em></p><img src="https://counter.theconversation.com/content/81784/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sharmila Rudrappa does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Surrogate mothers in developing countries are being shuffled across borders to evade a crackdown on the industry. This emerging gray market puts women at risk.Sharmila Rudrappa, Professor of Sociology, The University of Texas at AustinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/838682017-09-21T00:44:51Z2017-09-21T00:44:51ZA new way to regulate surrogacy to give more certainty to all involved<figure><img src="https://images.theconversation.com/files/186486/original/file-20170918-30516-dnd6hu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>Starting a family through surrogacy is fraught with stresses and <a href="https://link.springer.com/epdf/10.1007/s11673-014-9557-9?shared_access_token=NjMBEh0QXy6I8MKSyyPm5Pe4RwlQNchNByi7wbcMAY4129fReTDQdGcq8lO9fuD3KfzhXgWaSaESwjk_2iUem9Fv0DxOKZ83n3020SoXsMWeRqFhvQqssyECrXXsnYdL9YoO6iwFWrDEb_V3oKu6nmPfDSSFc-_rlbaR37poquA%3D">uncertainties</a>.</p>
<p>For heterosexual couples it is often the last resort after a history of disappointment and even tragedy. Gay couples remain subject to <a href="https://books.google.co.nz/books?id=8kO4CAAAQBAJ&printsec=frontcover&dq=Gay+Fathers,+Their+Children,+and+the+Making+of+Kinship.+Author+Aaron+Goodfellow&hl=en&sa=X&redir_esc=y#v=onepage&q=Gay%20Fathers%2C%20Their%20Children%2C%20and%20the%20Making%20of%20Kinship.%20Author%20Aaron%20Goodfellow&f=false">discrimination and stigma</a> when it comes to planning a family. </p>
<p>Surrogates face the risk that the intended parents might opt out of the arrangement, leaving them the legal mother of a child they did not plan to raise. They are often not compensated for their service.</p>
<p>We think it is time for a <a href="http://www.palgrave.com/br/book/9781137586575">new way to regulate surrogacy</a> to provide certainty over legal parentage and protection of the surrogate’s rights.</p>
<h2>Surrogacy now</h2>
<p>In genetic surrogacy (also known as traditional or partial surrogacy), the surrogate uses her own egg and becomes pregnant through artificial insemination, usually using the intended father’s sperm. In gestational surrogacy (also called host surrogacy), the surrogate carries a couple’s embryo, or an embryo created using donor gametes, and becomes pregnant using in-vitro fertilisation techniques.</p>
<p><a href="http://www.reuters.com/article/us-india-women-surrogacy-factbox/fatcbox-which-countries-allow-commercial-surrogacy-idUSKBN1530FP">Current legislation in many countries</a> creates unnecessary risks for all parties involved in a surrogacy arrangement. Many intended parents plunge into the even riskier world of <a href="https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-891/child-rights-in-international-commercial-surrogacy">international surrogacy</a> where they encounter further obstacles to securing parental rights when they return with a baby.</p>
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<p>In a number of jurisdictions, including New Zealand and <a href="http://www.smh.com.au/news/national/surrogate-mothers-for-mps-baby/2006/11/06/1162661615860.html">Australia</a>, the only form of surrogacy that is permitted is <a href="http://www.nzlii.org/nz/other/nzlc/pp/PP54/PP54-4_.html">altruistic (or unpaid) surrogacy</a>. Typically, intended parents are allowed to reimburse pregnancy-related expenses, but are not permitted to pay anything beyond that. </p>
<p>We think this is unfair. Surrogates deserve fair compensation and, indeed, most intended parents want to be able to compensate the surrogate for her work and the risks she undertakes. </p>
<p>Antiquated adoption laws, such as New Zealand’s <a href="http://www.legislation.govt.nz/act/public/1955/0093/35.0/DLM292661.html">Adoption Act 1955</a>, require the intended parents to adopt the baby from the surrogate. This generates tensions throughout the relationship over whether the surrogate will relinquish the baby, the intended parents will adopt it, and the social workers and Family Court will give their approval. All parties are entitled to certainty over legal parentage.</p>
<h2>The professional model</h2>
<p><a href="https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-891/child-rights-in-international-commercial-surrogacy">Commercial surrogacy</a> is an option in some jurisdictions. It relies on a contract to determine the obligations of both parties with no recourse other than the courts when something goes wrong. We think it is a mistake to regulate surrogacy according to the norms of business, which is based on the principle, “Let the buyer beware.” </p>
<p>Instead, we propose a third alternative: the professional model. It is inspired by the way the caring professions are regulated. Its unique provisions would protect the rights of surrogates, put the interests of the intended baby at the heart of the arrangement, and give intended parents certainty by recognising them as the legal parents of the baby from its birth.</p>
<p>At the centre of the model is a regulatory body similar to those of the nursing and medical professions. It would be responsible for licensing fertility clinics, maintaining a register of surrogates, determining a fair rate of compensation and ensuring compliance with a code of ethics. Registration would protect the surrogate’s rights by setting a fee that cannot be negotiated down (or up) and cannot be made contingent on compliance with the intended parents’ wishes or a successful outcome to the pregnancy. </p>
<p>The surrogate’s rights to bodily integrity and medical confidentiality cannot be negotiated away. She has the right to refuse unreasonable demands and be protected from practices that compromise her safety. For example, the regrettably common practice of transferring two or more embryos when there is no clinical justification for doing so would not be permitted. Intended parents have to understand that the surrogate retains all her rights as a pregnant woman.</p>
<p>Registration of all surrogates would also protect women from coercion. In a confidential process used to ensure that a woman is medically and psychologically fit to undertake a surrogacy, and sensitive to the ethical responsibilities she would be taking on, she would be able to disclose feeling pressured or reluctant. All the intended parents would know was that the regulatory body declined to register her.</p>
<h2>Intended parents and baby</h2>
<p>The professional model also aims to protect intended parents, who are vulnerable in a number of ways. Surrogacy is often the last remaining avenue for heterosexual couples. For gay couples, regulation could lessen discrimination when it comes to starting a family.</p>
<p>The intended parents need the compassion and understanding of their surrogate as they go through an inevitably stressful process. They have no control over the surrogate’s behaviour during the pregnancy, do not have a right to information and cannot make decisions about its course. The surrogate retains her right to bodily integrity and medical confidentiality both now and under our model. </p>
<p>They must therefore rely on the surrogate’s generosity with both information and decision making. What this means is that the surrogate should have an appreciation and understanding of the ethical significance of her role. She must be trustworthy and able to put the interests of the intended parents and the baby ahead of her own in the way that professionals do. </p>
<p>The intended baby has independent interests, principally being born full-term and healthy. The surrogate’s duties to the intended baby mean she should act in evidence-based ways under the supervision of professionals to increase the chances of that outcome. In a few tragic cases, it may not be in the intended baby’s interests to be born and the surrogate must make her decision accordingly. </p>
<h2>Professional support</h2>
<p>Under our proposed regulation of surrogacy, both parties would have access to professional support as needed, from the time that a surrogacy arrangement is contemplated until some time after the birth. </p>
<p>There will always be tensions and difficulties in a surrogacy arrangement. Most will end well, but lack of support is one reason why some end badly. The professional model greatly reduces risks through registration of surrogates, counselling before the pregnancy is established and, critically, by making help available as needed.</p><img src="https://counter.theconversation.com/content/83868/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Surrogacy is fraught with uncertainties. Proposed regulation, inspired by the way the caring professions are regulated, would protect the surrogate and provide certainty about legal parentage.Ruth Walker, Senior Lecturer in Philosophy, University of WaikatoLiezl van Zyl, Senior lecturer, Philosophy, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/692032016-11-24T00:00:43Z2016-11-24T00:00:43ZArrests and uncertainty overseas show why Australia must legalise compensated surrogacy<figure><img src="https://images.theconversation.com/files/147266/original/image-20161123-19726-1wzya5z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A lack of regulation of surrogacy in developing countries makes it easy for exploitation to occur.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Cambodia is the latest country in our region to ban commercial surrogacy. As happened when India, Thailand and Nepal introduced such bans, dozens of Australians are now extremely anxious because they have no idea what is going to happen to their babies who have recently been born or are on their way.</p>
<p>A lack of regulation of surrogacy in these countries makes it easy for exploitation to occur. So, it is simpler for them to just ban the practice, rather than devise comprehensive laws to adequately protect all parties involved in a surrogacy arrangement.</p>
<p>But the reasons for banning compensated surrogacy in developing countries don’t apply in Australia. We already have much of the legal infrastructure needed to ensure that compensated surrogacy can be undertaken in a way that is not exploitative and protects the interests of everyone involved – especially children. And we have world-class medical skills and health services to ensure surrogacy is performed to the highest standards.</p>
<h2>Why are couples looking to overseas?</h2>
<p>Australian officials are <a href="http://www.smh.com.au/world/australian-and-cambodian-officials-set-for-meeting-over-surrogacy-crisis-20161121-gsu37y.html">hurriedly meeting</a> with Cambodian authorities to try to negotiate transitional arrangements so parents can bring their children home. Meanwhile, Australian woman Tammy Davis-Charles is <a href="http://www.abc.net.au/news/2016-11-21/australian-woman-charged-over-illegal-surrogacy-clinic-cambodia/8042708">facing charges</a> relating to her running a surrogacy clinic in that country.</p>
<p>With <a href="http://www.smh.com.au/nsw/australian-babies-and-parents-stranded-in-nepal-after-commercial-surrogacy-ban-20151005-gk19bf.html">so many stories</a> of things going horribly wrong with overseas surrogacy arrangements, why are Australians continuing to go to these countries to start their families? Surely they should realise how risky it is to pursue surrogacy in countries that have no laws protecting the children born via surrogacy, the surrogate, or the intended parents?</p>
<p>For some, the urge to have a child is clearly so strong that they will go to almost any length to start their family. This includes throwing themselves into the often unsavoury global commercial surrogacy market.</p>
<p>Couples undertaking compensated surrogacy generally fall into one of two groups:</p>
<ul>
<li><p>infertile heterosexual couples who have been doing IVF for years and have finally given up on ever conceiving a child in this way; or</p></li>
<li><p>gay couples, who can’t find a woman willing to donate eggs and another willing to carry a child for them to receive only reimbursement of their out-of-pocket expenses for the risk and effort they undertake.</p></li>
</ul>
<p>Given all Australian states and territories ban compensated surrogacy, going overseas is the only option for these couples. </p>
<p>The two safest countries in which to undertake surrogacy – those with the best laws and healthcare systems – are Ukraine and parts of the US. However, Ukraine discriminates against gay couples, offering surrogacy services to married heterosexual couples only. And the cost of surrogacy in the US is beyond the reach of most Australian couples. </p>
<p>This leaves only developing countries closer to home. With Cambodia closing its doors to surrogacy, <a href="http://www.sensiblesurrogacy.com/surrogacy-in-cambodia/">Laos</a> will possibly become the next destination for these reproductive services. But if the best predictor of future behaviour is past behaviour, it will only be a matter of time before Laos announces similar bans.</p>
<h2>Issues overseas should prompt Australian action</h2>
<p>Children born overseas via surrogacy can experience short- and long-term problems. In the short term, they may have difficulties <a href="http://www.abc.net.au/news/2014-08-19/rights-of-surrogate-children-born-overseas/5654602">getting a visa</a> or Australian citizenship. In the long term, they may struggle with <a href="https://www.routledge.com/Surrogacy-Law-and-Human-Rights/Gerber-OByrne/p/book/9781472451248">identity issues</a>. </p>
<p>One lesson we have learned from adoption is that many children have a strong urge to know their genetic origins. The lack of regulation and record-keeping in developing countries makes it virtually impossible for a child born via surrogacy to access information about their egg donor. </p>
<p>Contrast this with Australia. For many years, it has maintained central registries of all sperm and egg donors, which children of such donors can access when they turn 18.</p>
<p>The lack of regulation in developing countries also makes it easy for surrogates to be exploited. Again, this can be avoided in Australia, with the enactment of laws to protect surrogates. These could include, for example:</p>
<ul>
<li><p>compulsory psychological assessment of both surrogates and intended parents;</p></li>
<li><p>evidence of free and informed consent by surrogates given only after mandatory counselling and legal advice;</p></li>
<li><p>approval of all compensated surrogacy agreements by a regulatory body such as the <a href="https://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/perinatal-reproductive/assisted-reproduction/patient-review-panel/">Patient Review Panel</a> in Victoria, which already approves altruistic surrogacy arrangements in that state;</p></li>
<li><p>setting minimum and maximum rates of compensation for surrogates that reflect the risk and effort involved in carrying a child for another; and</p></li>
<li><p>surrogates retaining the right to make all decisions relating to their health and that of the foetus they will carry. </p></li>
</ul>
<p>But a worrying pattern is emerging in Australia: we prefer to <a href="http://www.smh.com.au/comment/leaving-burden-of-radicals-migrants-to-others-makes-us-a-poor-global-citizen-20150630-gi21qb.html">export our policy problems</a> rather than deal with them at home. This extends to asylum seekers whom we detain on Nauru and Manus Island, and dual citizens convicted of terrorism offences overseas whom we strip of their citizenship and block from returning to Australia. </p>
<p>To this list, we can add couples with fertility problems. </p>
<p>Australia is a wealthy country with superior health and legal systems, and we should provide all modern reproductive services in a safe and regulated environment that protects the human rights of all participants.</p><img src="https://counter.theconversation.com/content/69203/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paula Gerber does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The reasons for banning compensated surrogacy in developing countries don’t apply in Australia.Paula Gerber, Professor of Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/671322016-11-18T03:34:09Z2016-11-18T03:34:09ZThe next frontier in reproductive tourism? Genetic modification<figure><img src="https://images.theconversation.com/files/144124/original/image-20161101-24460-1pylff6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Human oocyte in vitro fertilization.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/zeissmicro/27771482282">Ziess Microscopy/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The birth of the first baby born using a technique <a href="https://www.newscientist.com/article/2107219-exclusive-worlds-first-baby-born-with-new-3-parent-technique">called mitochondrial replacement, which uses DNA from three people</a> to “correct” an inherited genetic mutation, was announced in September 2016. </p>
<p>Mitochondrial replacement or donation allows women who carry mitochondrial diseases to avoid passing them on to their child. These diseases can range from mild to life-threatening. No therapies exist and only a few drugs are available to treat them.</p>
<p>There are no international rules regulating this technique. Just one country, the United Kingdom, explicitly <a href="http://www.legislation.gov.uk/uksi/2015/572/contents/made">regulates the procedure</a>. It’s a similar situation with other assisted reproductive techniques. Some countries permit these techniques and others don’t. </p>
<p>I study the intended and unintended consequences of regulating, prohibiting or authorizing the use of new technologies. One of these unintended consequences is “medical tourism,” where people travel from their home countries to places where practices such as commercial surrogacy or embryo selection are allowed. </p>
<p>Medical tourism for assisted reproductive technologies raises a host of legal and ethical questions. While new reproductive technologies, like mitochondrial replacement, promise to bring significant benefits, the absence of regulations means that some of these questions, including those related to safety and risks are unanswered, even as people are starting to use them. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Mitochondria power our cells.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-425512399/stock-photo-mitochondrium-3d-rendering-microbiology-illustration.html?src=TrjF1GC8FGuEZ0mQ-utOwA-3-61">Mitochondrium image via www.shutterstock.com.</a></span>
</figcaption>
</figure>
<h2>How does mitochondrial replacement work?</h2>
<p>We each inherit our mitochondria, which provide the energy that our cells need to function and the tiny fraction of DNA contained in it, only from our mothers. Some of that mitochondrial DNA might be defective, carrying mutations or errors that might lead to mitochondrial diseases.</p>
<p>The mother of the baby born using this technique carried one of these diseases. The disease, known as <a href="https://ghr.nlm.nih.gov/condition/leigh-syndrome#genes">Leigh Syndrome</a>, is a neurological disorder that typically leads to death during childhood. Before having this baby, the couple had two children who died as a result of the disease. </p>
<p>Mitochondrial replacement is done in a lab, as part of in vitro fertilization. It works by “substituting” the defective mitochondria of the mother’s egg with healthy mitochondria obtained from a donor. The child is genetically related to the mother, but has the donor’s mitochondrial DNA. </p>
<p>It involves three germ cells: an egg from the mother, an egg from a healthy donor and the sperm from the father. While the term “three-parent” child is often used in news <a href="http://www.nytimes.com/2016/09/28/health/birth-of-3-parent-baby-a-success-for-controversial-procedure.html?_r=0">stories</a>, it is a highly controversial one. </p>
<p>To some, the tiny fraction of DNA contained in a mitochondria provided by a donor is not sufficient to make the donor a “second mother.” The U.K., the only country that has regulated the technique, takes this position. Ultimately, the DNA replaced is a tiny fraction of a person’s genes, and it is unrelated to the characteristics that we associate with genetic kinship.</p>
<p>There is some discussion as to whether mitochondrial replacement is a so-called “germ line modification,” a genetic modification that can be inherited. Many <a href="http://www.nature.com/news/where-in-the-world-could-the-first-crispr-baby-be-born-1.18542">countries</a>, including the U.K., have either banned or taken a serious stance on technologies that could alter germ cells and cause inherited changes that can affect future generations. But a great number of countries, including Japan and India, have ambiguous or unenforceable regulations about germline modification.</p>
<p>Mitochondrial replacement results in a germline change, but that change is passed to future generations only if the child is a girl. She would pass the donor’s mitochondrial DNA to her offspring, and in turn her female descendants will pass it to their children. If the child is a boy, he wouldn’t pass the mitochondrial DNA on to his offspring. </p>
<p>Because the mitochondrial modification is only heritable in girls, the U.S. National Academies of Science recently recommended that use of this technique be <a href="https://www.nationalacademies.org/hmd/Reports/2016/Mitochondrial-Replacement-Techniques.aspx">limited to male embryos</a>, in which the change is not inheritable. The U.K. considered but then rejected this approach.</p>
<h2>A thorny ethical and regulatory debate</h2>
<p>In the U.S., the FDA claimed jurisdiction to regulate mitochondrial replacement but then halted further discussions. A rider included in the <a href="https://www.congress.gov/bill/114th-congress/house-bill/2029/text">2016 Congressional Appropriations Act</a> precludes the FDA from considering mitochondrial replacement.</p>
<p>While the technique has been given the green light in the U.K., the nation’s Human Fertilisation and Embryology Authority is gathering more <a href="http://www.hfea.gov.uk/10363.html">safety-related information</a> before granting the first licenses for mitochondrial replacement to clinics.</p>
<p>Experts have predicted that once the authority starts granting authorization, people seeking mitochondrial replacement would go to the U.K. </p>
<p>At the moment, with no global standard dictating the use of mitochondrial replacement, couples (and experts willing to use these technologies) are going to countries where the procedure is allowed. </p>
<p>This has happened with other technologies such as embryo selection and commercial surrogacy, with patients traveling abroad to seek out assisted reproduction services or technologies that are either prohibited, unavailable, of lower quality or more expensive in their own countries.</p>
<p>The <a href="https://www.newscientist.com/article/2107219-exclusive-worlds-first-baby-born-with-new-3-parent-technique/">first documented case</a> of successful mitochondrial replacement involved U.S. physicians assisting a Jordanian couple in Mexico. Further reports of the use of mitochondrial replacement in <a href="https://www.newscientist.com/article/2108549-exclusive-3-parent-baby-method-already-used-for-infertility/">Ukraine</a> and <a href="http://www.nature.com/news/reports-of-three-parent-babies-multiply-1.20849">China</a> have followed. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In this Nov. 3, 2015 photo, a newborn baby is transferred to an ambulance at the Akanksha Clinic, one of the most organized clinics in the surrogacy business, in Anand, India.</span>
<span class="attribution"><span class="source">Allison Joyce/AP</span></span>
</figcaption>
</figure>
<p>The increasing trend of medical tourism has been followed by sporadic <a href="http://www.telegraph.co.uk/news/2016/04/14/baby-gammy-was-not-abandoned-in-thailand-court-rules/">scandals</a> and waves of tighter regulations in countries such as <a href="http://www.cnn.com/2016/09/08/asia/india-surrogacy-laws/">India</a>, <a href="http://www.nytimes.com/2016/05/03/world/asia/nepal-bans-surrogacy-leaving-couples-with-few-low-cost-options.html?_r=0">Nepal</a> and <a href="http://www.bbc.com/news/world-asia-31546717">Thailand</a>, which have been leading destinations of couples seeking assisted reproduction services.</p>
<p>Intended parents and children born with the help of assisted reproduction outside of their home countries have faced problems related to family ties, citizenship and their relationship with donors – especially with the use of <a href="http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1420&context=bjil">commercial surrogacy</a>.</p>
<p>Mitochondrial replacement and new gene editing technologies add further questions related to the safety and long-term effects of these procedures.</p>
<h2>Gene modification complicates reproductive tourism</h2>
<p>Mitochondrial replacement and technologies such as gene-editing with the use of <a href="http://www.nytimes.com/2015/12/18/opinion/a-pause-to-weigh-risks-of-gene-editing.html">CRISPR-CAS9</a> that create germline modifications are relatively new. Many of the legal and ethical questions they raise have yet to be answered.</p>
<p>What if the children born as a result of these techniques suffer unknown adverse effects? And could these technologies affect the way in which we think about identity, kinship and family ties in general? One technique to replace mutated mitochondria involves the creation of embryos that will be later disposed. How should the use and disposal of embryos be regulated? What about the interests of the egg donors? Should they be paid? </p>
<p>Some of these problems could be avoided through a solid regulatory system in the U.S. and other countries. But as long as patients continue to seek medical treatments in “havens” for ethically dubious or risky procedures, many of these problems will persist. </p>
<p>Regulatory authorities around the world are <a href="http://nationalacademies.org/gene-editing/consensus-study/index.htm">debating</a> how to better regulate these genetic modification technologies. Governments need to start considering not only the ethical and safety effects of their choices but also how these choices drive medical tourism.</p><img src="https://counter.theconversation.com/content/67132/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rosa Castro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Medical tourism for assisted reproductive technologies raises a host of legal and ethical questions.Rosa Castro, Postdoctoral Associate in Science and Society, Duke UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/551262016-02-24T01:36:31Z2016-02-24T01:36:31ZLegalising commercial surrogacy in Australia won’t stop people going overseas<figure><img src="https://images.theconversation.com/files/112467/original/image-20160223-16464-n908w2.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Legalising commercial surrogacy would just relocate the same problem. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/jessgarduno/7540539484/">Jess G/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>A <a href="https://theconversation.com/making-commercial-surrogacy-illegal-only-makes-aspiring-parents-go-elsewhere-54382">recent Conversation article</a> that said our current laws prohibiting commercial surrogacy are not working was correct. Some states outlaw overseas commercial surrogacy, but people are working around the laws or simply ignoring them. </p>
<p>There’s no evidence, however, to say legalising commercial surrogacy here would stop people from going overseas where it’s probably cheaper and there may be less regulation.</p>
<h2>Love isn’t all you need</h2>
<p>Proponents of commercial surrogacy argue it doesn’t matter how a child is conceived as long as it is loved. </p>
<p>However, this view <a href="https://theconversation.com/donor-conception-secrecy-and-the-search-for-information-44000">contradicts trends</a> in public policy internationally and a large and growing body of research into the experiences of <a href="http://www.publishing.monash.edu/books/mb-9781921867866.html">adoptees</a> and <a href="http://eprints.hud.ac.uk/14477/">donor-conceived</a> people. </p>
<p>Birth circumstances, conception, secrecy and separation from family have life-long implications for identity, well-being, relationships and mental health. A truly child-centred approach cannot disregard this.</p>
<h2>Relocating the problem</h2>
<p>It is assumed children born of commercial surrogacy in Australia will have access to complete and accurate information, but there are no laws that compel parents to tell their children <a href="https://aifs.gov.au/publications/families-policy-and-law/9-secrecy-family-relationships-and-welfare-children-bornas%20with%20donor-conception%20and%20adoption">about their origins</a> in the case of adoption or donor conception.</p>
<p>Overseas commercial arrangements can be expensive, especially in the United States, a first world country. Conditions in many countries are not regulated, lack transparency, are exploitative and do not require standards in record keeping – the release of information (if it exists) is arbitrary. Overseas surrogacy is financially and ethically risky for everybody. But legalising commercial surrogacy in Australia won’t fix this. </p>
<p>Making surrogacy affordable and competitive against cheap Asian options shifts the potential for exploitation to Australian surrogates rather than addressing it. The very low rates of altruistic surrogacy indicate that unless motivated by a deep personal connection between surrogate and commissioning parents, most Australian women consider the risks, inconvenience and potential emotional and health complications of surrogacy to be too much. </p>
<p>Educated, skilled and employed women are unlikely to subject themselves to the demands and risks of pregnancy to fulfil the aspirations of others. This leaves the likely Australian candidates for commercial arrangements as less educated women with fewer skills and employment prospects. While Australia is not a developing country, <a href="https://aifs.gov.au/publications/families-policy-and-law/8-use-surrogacy-australians-implications-policy-and-law-reform">differences in wealth</a> and power create a dynamic ripe for exploitation. </p>
<p>Properly calculating the real costs for surrogates while ensuring profit for private legal and medical practitioners will not make costs cheaper than Asia or the Americas. </p>
<p>Carrying a child to term is a nine-month, 24-hour-a-day undertaking. It brings discomfort, inconvenience and health risks, and precludes other activities. </p>
<p>Then, of course, there are costs before pregnancy and after birth. Not covering all costs, or costed at less than appropriate rates, will exploit the most vulnerable and powerless in our society. Clinics might turn to importing poor women from overseas as we see <a href="http://www.smh.com.au/national/ivf-treatment-south-african-agency-flies-egg-donors-to-australia-20160208-gmo8qn.html">egg donors coming into the country</a> now.</p>
<p>The current legislative prohibitions on commercial surrogacy are not working, but there is no evidence that commercialising surrogacy in Australia will solve overseas exploitation. Many commissioning parents in countries where commercial surrogacy exists still go overseas.</p>
<p>Commercialisation will not prevent inappropriate people from accessing children, as in the <a href="https://theconversation.com/baby-gammy-case-reveals-murky-side-of-commercial-surrogacy-30081">Baby Gammy</a> case, because there is little focus on the well-being of the children in any legislation or in national and international discussions. The voices of “consumers” dominate these debates.</p>
<p>Legalising commercial surrogacy in Australia will not necessarily prevent the exploitation of women nor ensure the well-being of children under <a href="http://link.springer.com/article/10.1007%2Fs11673-014-9557-9">proposed changes to the laws</a>. It will simply change the site at which the exploitation takes place.</p><img src="https://counter.theconversation.com/content/55126/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s no evidence to say legalising commercial surrogacy here would stop people from going overseas where it’s probably cheaper and there may be less regulation.Denise Cuthbert, Dean, School of Graduate Research, RMIT UniversityPatricia Fronek, Senior Lecturer, School of Human Services and Social Work, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/543822016-02-18T03:58:54Z2016-02-18T03:58:54ZMaking commercial surrogacy illegal only makes aspiring parents go elsewhere<figure><img src="https://images.theconversation.com/files/111727/original/image-20160217-19241-1ne00m4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The most important thing when considering surrogacy laws are the rights of the children.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/bibbit/4239068799/">Bridget Coila/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>When many people hear the word “surrogacy” their immediate reaction is to think of the plight of <a href="http://www.smh.com.au/national/australian-couple-leaves-down-syndrome-baby-with-thai-surrogate-20140731-zz3xp.html">Baby Gammy</a>, abandoned in Thailand by his intended parents.</p>
<p>Yet stories like this do not reflect the experience of hundreds of Australians who travel overseas every year to start a family through compensated surrogacy. For the overwhelming majority of these people, the experience is costly and stressful, but not exploitative or degrading.</p>
<p>People who require the services of a surrogate in order to have a child are going offshore because the only surrogacy permitted in Australia is altruistic surrogacy. Laws in all Australian states and territories, except the Northern Territory, prohibit the payment of any money to a surrogate, beyond reimbursement of reasonable medical expenses.</p>
<p>Because of this prohibition on compensated surrogacy within Australia, hundreds of couples go overseas every year to engage the services of a surrogate. This is true even in Queensland, New South Wales and the ACT, where it is a criminal offence to enter into a compensated surrogacy arrangement overseas. </p>
<p>These laws are clearly an abject failure. They are not deterring people from heading offshore to engage in surrogacy. There has not been a single prosecution, let alone a conviction, for pursuing extra-territorial surrogacy.</p>
<p>Against this backdrop, the federal parliament’s Standing Committee on Social Policy and Legal Affairs is conducting an <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Inquiry_into_surrogacy">inquiry</a> into the regulatory and legislative aspects of international and domestic surrogacy arrangements. It is expected to finalise its report in June 2016. </p>
<p>This is a welcome development. Although there is no consensus on how compensated surrogacy should be regulated, there is general agreement that the current system is not working.</p>
<p>One way of working through all the ethical, moral and legal questions associated with surrogacy is to use international human rights law as the lens through which to consider the issues. In the foreword to my recent <a href="https://www.routledge.com/products/9781472451248">book on surrogacy</a>, Gillian Triggs, president of the Australian Human Rights Commission, observed that international human rights treaties:</p>
<blockquote>
<p>… now provide a body of law that can inform our approaches to new ethical and legal challenges, including those stimulated by scientific advances.</p>
</blockquote>
<p>The starting point in any consideration of regulating compensated surrogacy must be the best interests and rights of the child. The <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx">Convention on the Rights of the Child</a>, which binds Australia (and every other country in the world except the United States), does not explicitly mention surrogacy. However, several provisions can guide consideration of how to regulate surrogacy to protect the best interests of children born through this procedure. </p>
<p>Article 7 provides that children have a right to an identity and to know and be cared for by their parents. Children born through surrogacy may have up to five parent-like people: two intended parents, a sperm donor, an egg donor and the surrogate. In this context, Article 7 is best understood as meaning that children have a right to know their biological and gestational parents and to be cared for by their intended parents. </p>
<p>With many overseas surrogacies, the record-keeping is poor or non-existent, making it impossible for a child to find out their genetic origins. Australia has one of the <a href="https://theconversation.com/secrets-and-lies-why-donor-conceived-children-need-to-know-their-origins-44015">best systems</a> in the world for recording persons who donate eggs and sperm. This ensures that children born through surrogacy in Australia will be able to identify all the people associated with their creation. </p>
<p>Many people’s reaction to surrogacy today is reminiscent of the reaction to IVF when the first “test-tube baby” was born in Australia in 1980. As Peter Illingworth, president of the Fertility Society of Australia, <a href="http://www.abc.net.au/news/2010-06-23/first-ivf-baby-turns-30/877426">noted</a>:</p>
<blockquote>
<p>At the time babies being born through this sort of technology was considered revolutionary and really quite odd and unusual and quite bizarre […] many people had fears that we were entering into a brave new world of designer babies and synthetic babies and there was a lot of concern and fear.</p>
</blockquote>
<p>We need to acknowledge and address the legitimate fears that people have about surrogacy. But rather than trying to stop these scientific advances, we should put in place safeguards to prevent exploitation of vulnerable women and protect the rights of children born through surrogacy.</p>
<p>It is time to allow compensated surrogacy to take place in Australia by creating a legal framework that avoids the laissez-faire approach seen in some parts of the US, and the harmful practices seen in many developing countries that lack the high-quality health care and legal systems that Australia has.</p>
<p>When moving forward, we would do well to keep in mind the words of Lebanese philosopher <a href="http://www.katsandogz.com/onchildren.html">Khalil Gibran</a>: </p>
<blockquote>
<p>Your children are not your children […] they come through you but not from you,
and though they are with you yet they belong not to you […] you may give them your love but not your thoughts, for they have their own thoughts. You may house their bodies but not their souls.</p>
</blockquote>
<p>This reminds us that how a child is conceived, and how a child is born, is largely irrelevant. What is important is that children are loved and their inherent dignity respected. </p>
<p>If we bear this in mind, we should be able to develop a regulatory system that allows compensated surrogacy to take place in Australia, rather than forcing people to pursue such arrangements offshore.</p>
<hr>
<p><em>For further insight into all the human rights issues involved in compensated surrogacy, including whether surrogacy amounts to the sale of children in breach of Article 35 of the CRC, watch this <a href="https://www.youtube.com/watch?v=llVRHwZICr0">2015 TEDxTalk</a>.</em></p><img src="https://counter.theconversation.com/content/54382/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paula Gerber does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>People who require the services of a surrogate to be able to have a child are going offshore because the only surrogacy permitted in Australia is altruistic surrogacy.Paula Gerber, Professor, Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/437062015-06-24T01:33:56Z2015-06-24T01:33:56ZFactCheck: is Australia legally obliged to look after children abandoned after commercial surrogacy?<blockquote>
<p>“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.” <strong>– Chief Justice of the Federal Circuit Court, John Pascoe, <a href="http://www.abc.net.au/news/2015-06-23/judge-calls-investigation-claims-couple-abandoned-surrogate-baby/6565012">Foreign Correspondent, June 23, 2015</a>.</strong></p>
</blockquote>
<p>Details of a 2012 case of an Australian couple who were delivered a set of twins, a boy and girl, via a commercial surrogacy arrangement in New Delhi, continue to be revealed, most recently by this week’s episode of <a href="http://www.abc.net.au/foreign/content/2015/s4260667.htm">Foreign Correspondent</a>. </p>
<p>Shortly after the birth the couple told Australian High Commission staff in New Delhi they would be adopting out the boy, and returning to Australia with the girl. Citizenship and a passport were subsequently granted for the girl.
However, controversy remains regarding who adopted the boy, and whether money changed hands. </p>
<p>Should the police be involved and does Australia have obligations to track down the boy and ensure his welfare? </p>
<h2>Acting contrary to the law of NSW</h2>
<p>Commercial surrogacy is prohibited by law in all states of Australia and the ACT. In NSW, where the couple reside, the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2010139/s8.html">prohibitions</a> apply <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2010139/s11.html">extra-territorially</a>. This means that people from NSW who travel elsewhere to engage in commercial surrogacy, including the couple in question, are breaking the law. (Extra-territorial prohibitions also apply in Queensland and the ACT). </p>
<p>The extra-territorial laws, which passed via a “<a href="http://www.aph.gov.au/help/glossary#F">free vote</a>” in the NSW parliament, were based upon the view that commercial surrogacy places the needs of intending parents above the needs of the child, and that gaining access to children by circumventing local laws and travelling overseas “<a href="http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20101028007">was not a practice that …lawmakers …should encourage</a>”. </p>
<p>The NSW couple could therefore be prosecuted in Australia for entering into the arrangement. If found guilty of breaking the law they face fines of up to A$110,000 and/or imprisonment for two years.</p>
<h2>What other sanctions might apply?</h2>
<p>In the abovementioned Foreign Correspondent report, Shakhar Naphade, Senior Counsel to the Indian Supreme Court suggested the couple may have engaged in child abandonment under Indian law. <a href="http://indiankanoon.org/doc/9383/">Section 317</a> of the Indian Penal Code provides for the offence, which carries a penalty of up to seven years imprisonment (and/or fines). Treaty obligations between Australia and India would enable extradition of the couple to India for prosecution. Naphade further suggested that if the child had been abandoned, the Australian government may have aided and abetted such abandonment.</p>
<p>However, whether the law of abandonment applies in circumstances in which a child is relinquished by its birth mother and father for adoption needs to be determined. Pursuant to the <a href="http://indiankanoon.org/doc/946025/">Hindu Adoptions and Maintenance Act, 1956</a> it is legal for a birth mother and father to consent to the adoption of a child, provided certain criteria is met.</p>
<h2>Is the boy an Australian citizen?</h2>
<p>The legal status of the boy is important in determining who has obligations to ensure his welfare and safety.</p>
<p>A child born outside Australia as a result of a surrogacy arrangement is eligible for Australian citizenship by descent if, at the time of birth, they had a parent who was an Australian citizen (including where the commissioning person(s) have contributed sperm, egg or embryo provided a biological connection is established using medical records and/or DNA testing). </p>
<p>However, Australian citizenship by descent does not occur automatically. An application must be made pursuant to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s15a.html">Australian Citizenship Act 2007</a> and the policy guidelines set out in the <a href="http://www.citizenship.gov.au/_pdf/acis-july-2013.pdf">Australian Citizenship Instructions</a>. </p>
<p>As there was no application by the commissioning couple for Australian citizenship for the boy, he is not an Australian citizen.</p>
<h2>What if he was legally adopted?</h2>
<p>Under <a href="http://indiankanoon.org/doc/946025/">Hindu adoption laws</a>, from the date of adoption an adopted child is deemed to be the child of his or her adoptive father or mother for all purposes. The boy would continue to be an Indian citizen, and is not stateless. All the ties of the child with the family of his birth are deemed to be severed and replaced by those created by the adoption in the adoptive family. </p>
<h2>Does Australia have a legal obligation to track down the boy and look after his welfare?</h2>
<p>Australia is a party to the United Nations <a href="http://www.ohchr.org/en/professionalinterest/pages/crc.aspx">Convention on the Rights of the Child</a>, its <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx">optional protocols</a>, and the <a href="http://www.hcch.net/index_en.php?act=conventions.text&cid=69">Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption</a>. All oblige Australia to protect the fundamental rights of children and prevent their abduction, sale, or trafficking. Australia has <a href="http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Documents/OPSCListofIssuesresponse.doc">cited</a> NSW prohibitions on commercial surrogacy as one way it meets such obligations. </p>
<p>However, Australia does not have legal obligations toward specific children who are not within its jurisdiction. The Department of Foreign Affairs said concerning the particular case:</p>
<blockquote>
<p>“As no application for Australian citizenship or passport was made for the male child at the time, India became responsible for his welfare and adoption arrangements became a matter for its legal system. Australian officials at the High Commission have no concerns regarding the legality of the adoption in India…”</p>
</blockquote>
<p>Nevertheless, despite no apparent legal obligation to act, Australian authorities may have a <a href="http://legal-dictionary.thefreedictionary.com/moral+obligation"><em>moral</em> obligation</a> to ensure the boy is safe and well. Arguably that moral obligation would extend to providing the boy information about his biological heritage and siblings. </p>
<h2>Would allowing commercial surrogacy in Australia prevent such occurrences?</h2>
<p>There is no evidence that permitting commercial surrogacy in Australia would prevent such occurrences. </p>
<p>It is possible that some people would still travel for reasons including, but not limited to, lower costs, sex-selection, a preference for not having contact with the surrogate mother or sperm/egg/embryo donor(s) after birth, and/or to avoid meeting other legal criteria. </p>
<p>It is also legal to relinquish children for adoption in Australia, and the couple would not have been obliged to care for a son they did not want here either.</p>
<h2>Verdict</h2>
<p>The couple may face legal prosecution under both Australian and Indian law, if the authorities decide to pursue them. </p>
<p>Australia has an obligation to enforce the laws it claims exist to protect children from exploitation, commodification, sale or trafficking. Doing so may deter some other people from engaging in commercial surrogacy arrangements.</p>
<p>Australia may not have a legal obligation to find the boy, however it may have a moral obligation to check on his safety and well-being.</p>
<hr>
<h2>Review</h2>
<p>This analysis of Australia’s legal and moral obligations toward a boy born to Australian commissioning parents in India is both sound and considered. </p>
<p>It points to the limits of current legal frameworks to protect children born of these arrangements and their skewed approach to prioritising the interests of commissioning parents over the rights of those children. </p>
<p>This article further highlights the need for international engagement on the issue of commercial surrogacy to protect the rights and interests of children. </p>
<p>Finally, the article addresses the overly simplistic argument that permitting commercial surrogacy in Australia would provide an acceptable alternative by outlining those reasons why many commissioning parents will still seek an overseas solution. <strong>– Liz Bishop</strong></p>
<hr>
<p><div class="callout"> Have you ever seen a “fact” that doesn’t look quite right? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.</div></p><img src="https://counter.theconversation.com/content/43706/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Fresh details have emerged of a 2012 case of an Australian couple who were delivered twins via a commercial surrogacy arrangement in India, but brought only one twin home. Does Australia have obligations to ensure the other twin’s welfare?Sonia Allan, Senior Lecturer, Law, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/314232014-10-09T03:15:09Z2014-10-09T03:15:09ZCommercial surrogacy in Australia: rethinking notions of ‘natural’<p>Often emphasised in discussions about children’s best interests is the idea that certain ways of having and raising children are “natural”. For example, this word appears frequently in reference to how children are conceived (with <a href="http://blogs.news.com.au/dailytelegraph/mirandadevine/index.php/dailytelegraph/comments/the_thought_police_telling_kids_heterosexualitys_not_the_norm/">heterosexual intercourse</a> often referred to as “natural reproduction”). It also appears in reference to how children are raised (e.g. it is typically seen as “natural” for a child to <a href="http://billmuehlenberg.com/2010/10/18/why-children-need-a-mother-and-a-father/">have a mother and a father</a>).</p>
<p>Views on what is “natural” have had a predictable airing in public debate over commercial surrogacy as a result of two recent cases of babies being abandoned by intended parents first in <a href="https://theconversation.com/baby-gammy-tales-of-the-unexpecting-30339">Thailand</a> and now in <a href="http://www.abc.net.au/news/2014-10-08/high-commission-knew-of-surrogacy-case-in-india/5799438">India</a>. Legislating for commercial surrogacy in Australia would help avoid this type of outcome. One barrier to the implementation of such legislation, however, is the view that commercial surrogacy is “unnatural”. </p>
<h2>Natural or naturalised?</h2>
<p>To progress discussions about children’s best interests beyond claims about what is “natural”, it is useful to consider the word as a moral category. In other words, what is referred to as “natural” is determined by human beings, rather than simply reflecting the world around us. This approach can help us to see that often what is described as “natural” in regard to the conception, birth and raising of children is what in fact has been “naturalised”, rather than strictly what is “in nature”.</p>
<p>So, for example, heterosexual intercourse doesn’t occur absent of a whole range of factors that are not, technically speaking, “in nature”. This includes how we present ourselves to others (e.g. clothing, grooming, scents), how we meet people (such as on dating sites) and the contexts in which heterosexual intercourse may occur (in buildings, for example). None of these is natural in the true sense. </p>
<p>Similarly, births that result from heterosexual intercourse are not strictly speaking “natural”. They often take place in hospitals, with the assistance of highly qualified professionals, and for some people with the use of medication and/or surgery. Again, we would find none of this in nature.</p>
<p>We can see, then, that what is treated as “natural” is actually “naturalised”; it is what has become part of our nature as people living in a country such as Australia. </p>
<p>These points about what is considered “natural” are important when we come to topics that are at times depicted as unnatural. For example, a <a href="https://theconversation.com/baby-gammy-case-reveals-murky-side-of-commercial-surrogacy-30081">public debate</a> is <a href="https://theconversation.com/reject-commercial-surrogacy-as-another-form-of-human-trafficking-30314">under way</a> in Australia about commercial surrogacy. As a mode of conceiving and birthing children, commercial surrogacy is often (though not always) depicted as unnatural and thus <a href="https://theconversation.com/making-surrogacy-legal-would-violate-childrens-rights-30716">not in the best interests of children</a>.</p>
<h2>Birth rate and ageing affect us all</h2>
<p>The problem we face in Australia, however, is a <a href="https://theconversation.com/family-size-intentions-the-missing-piece-of-australias-fertility-jigsaw-21069">declining birth rate</a> (below replacement rate) and an <a href="https://theconversation.com/the-state-of-australia-our-people-26084">ageing population</a>. Australian citizens are thus encouraged to reproduce in order to ensure the future wellbeing of the nation and its citizens. If such a pro-natalist approach is important, then we must acknowledge that fulfilling population targets requires a wide range of options in terms of the conception and birth of children. </p>
<p>Over the past decade reproductive technologies have become available to a much wider range of people. This has required <a href="http://www.abc.net.au/news/2007-12-15/lesbian-community-welcomes-vic-ivf-changes/989024">legislative change</a> to allow access for groups of people who, in the past, would have been considered “unnatural”. </p>
<p>What is now required are legislative changes that again revisit how we determine the borders of what is considered “natural”, this time to acknowledge that the nation is best off regulating its citizens within its borders, rather than accepting a status quo that implicitly encourages people to travel abroad for access to reproductive technologies (such as commercial surrogacy). This would certainly be in the best interests of all parties, including women in countries outside of Australia who at present act as commercial surrogates for Australian citizens, a situation that is largely beyond the regulatory purview of Australia. </p>
<h2>Legislation is in everyone’s best interests</h2>
<p><a href="https://theconversation.com/why-legalising-commercial-surrogacy-is-a-good-idea-11251">Legislating for commercial surrogacy</a> within Australia would allow for the tight regulation of surrogacy arrangements, which would include ensuring the safety of women who act as surrogates, and the keeping of records so that into the future children can find information about all involved in their conception and birth. </p>
<p>Just as the significant institutional supports for the birth of children conceived via heterosexual intercourse have been naturalised (e.g. hospitals, paid parental leave and medical science), so too, it is suggested here, should commercial surrogacy be naturalised as yet another way of having children. </p>
<p>Importantly, it is not argued that commercial surrogacy should become privileged as a way of having children.</p>
<p><a href="https://theconversation.com/law-offers-better-care-for-abused-children-given-enough-support-31285">Legislative change</a> in the child protection sector is needed too, so that more children who cannot live with their birth parents can be raised by other people wishing to have children, under permanent arrangements. Like discussions about commercial surrogacy, discussions about changes to the child protection sector also require us to rethink what we consider “natural” in terms of having and raising children.</p>
<p>For some, raising “another person’s child” might seem unnatural. For others, it might seem unnatural to separate a child from their birth parents. And for yet others, it might seem unnatural to encourage relationships between the multiple parents involved in raising a child in the context of child protection.</p>
<p>As this piece has suggested, for us to truly progress conversations about children’s best interests in Australia, it is important that we widen our scope in terms of what we see as “natural”.</p><img src="https://counter.theconversation.com/content/31423/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Damien Riggs receives funding from the Australian Research Council.</span></em></p>Often emphasised in discussions about children’s best interests is the idea that certain ways of having and raising children are “natural”. For example, this word appears frequently in reference to how…Damien Riggs, Associate Professor in Social and Policy Studies, Australian Research Council Future Fellow, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/307162014-08-20T20:17:40Z2014-08-20T20:17:40ZMaking surrogacy legal would violate children’s rights<figure><img src="https://images.theconversation.com/files/56882/original/mc7n48p7-1408512340.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Of each of the parties involved in commercial surrogacy, the only party possessing unarguable and inalienable rights is the child born of commercial agreements.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/aoa-/6989762566">Viola/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>The current debate about commercial surrogacy has focused on the competing needs of couples or individuals desperate to have children, and the exploitation of vulnerable women in low-income countries. But no one seems to be talking about the rights of the child.</p>
<p>This is particularly odd because the debate, which is loosely constructed around the competing desire of people to be parents and of women not to be exploited, is couched largely in the language of rights. The proposed solution for settling these competing desires is legislation that supports commercial surrogacy.</p>
<h2>Rights vs desires</h2>
<p>Claims to rights do not, in and of themselves, create rights. International law recognises both the <a href="http://www.un.org/en/documents/udhr/">right to found a family</a> (article 16), and the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/cescr.aspx">right to benefit from scientific progress</a> (article 15).</p>
<p>But neither of these rights, however cobbled together, can defensibly form a right to outsourcing the creation of child. Indeed, the creation of a child through commercial surrogacy could not have been contemplated in their origin.</p>
<p>Since the claim to create a child by means of a surrogate mother falls short of characterisation as a right, how is this claim to be understood? It is most readily recognised as a desire or interest.</p>
<p>The strongest argument for recognition of these desires or interests is that of same-sex couples. A same-sex couple will always be incapable of creating a child without the involvement of a third party. </p>
<p>But this lack of capacity doesn’t produce the right to a child, let alone the right to a child resulting from a contractual arrangement. Although the desire for a child may be great, desires are not rights.</p>
<p>What of the rights of the surrogate mother? We recognise the right to work, but that can be equally satisfied in ways other than commercial surrogacy. </p>
<p>Commercial surrogacy may seem to many women in low-income countries, and their families, as the best option for alleviating poverty. But that’s not a compelling argument for regulating commercial surrogacy. </p>
<p>Rather, it calls for addressing the poverty, limited opportunities and education of women, which together serve to create the environment rendering such arrangements an attractive option. </p>
<p>Analogies may be drawn with the arguments in support of the right of sex workers to perform sexual services for payment as an occupation. But in sex work, pregnancy is a hazard to be minimised. Children are not an intended outcome of that commercial act.</p>
<h2>Rights of the child</h2>
<p>And where in the surrogacy debate do we recognise the rights of the child? Of each of the parties involved in commercial surrogacy, the only party possessing unarguable and inalienable rights is the child born of commercial agreements. </p>
<p>Enshrined in the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx">Convention on the Rights of the Child</a>, this guarantees the right to dignity, protection from sale or trafficking, registration of his or her birth and to know his or her parents. </p>
<p>In writings about adoption and IVF, there is a <a href="http://eprints.qut.edu.au/61459/">strong body of evidence</a> demonstrating that children are profoundly interested in their parentage. </p>
<p>In surrogacy arrangements, whether commercial or not, if there’s a falling out between the gestational mother and the parents (who may or may not be genetically related to the child), the child may never know who gave birth to him or her. This risk is magnified in international surrogacy. </p>
<p>The <a href="https://web.duke.edu/kenanethics/CaseStudies/BabyManji.pdf">experience of commercial surrogacy agreements</a> in recent years has seen children languish stateless when their personal circumstances change and commissioning parents no longer want the child. And it’s not only because of disability that a child may not be claimed by his or her commissioning parents. </p>
<p>In the interim between commissioning the surrogate and the birth of the child, parents may separate or divorce, or one or both parents may be severely injured in an accident or a parent may die. Commissioning <a href="http://www.huffingtonpost.com/2013/08/19/surrogate-mother_n_3779387.html">parents may change their minds</a>.</p>
<p>What point would there be in enforcing contractual or personal arrangements under these circumstances? Is it really conceivable that society would (or, indeed, could) force parents to rear children once they’ve decided they would rather not? </p>
<p>These are not fanciful risks. Cases dealing with surrogacy contracts gone wrong have been <a href="http://www.businessinsider.com.au/the-case-of-baby-m-2014-2">determined by courts elsewhere</a>, <a href="http://www.smh.com.au/national/surrogacy-couple-win-right-to-babies-but-face-prosecution-20110728-1i155.html">none happily</a>.</p>
<h2>An inalienable responsibility</h2>
<p>Internationally recognised human rights often conflict. When they do, a balancing exercise is required to minimise the restrictiveness of the outcome. But in this circumstance, what we’re seeking to balance are strongly held desires against internationally and nationally recognised rights. </p>
<p>A child should neither be thought of as a vegetable nor a puppy able to be acquired as the result of a commercial transaction. This violation of the dignity of the child says something about those who are content to <a href="http://heinonline.org/HOL/LandingPage?handle=hein.journals/geojpovlp5&div=41&id=&page=">return to historic understandings</a> of a child as the property of its parents or, more correctly, its father.</p>
<p>We can’t ensure that all children will be born to loving parents to whom they are genetically related. Parents may abuse and abandon their children and not all parents are genetically related to their children. </p>
<p>But surely we don’t need to create a scheme in which the immediate desires of adults are knowingly placed ahead of the rights of the child. It’s also hard to see how permitting commercial surrogacy in Australia will resolve the problem of the difficulties for all parties entailed in enforcing surrogacy contract. </p>
<p>The cacophony of voices in the surrogacy debate is silenced only with recognition that the individual without choices and with rights is the child. </p>
<p>We’re yet to realise the rights of baby Gammy. He has a sister, he has a commissioning mother, and he has a commissioning father, through whom he has siblings. He has a surrogate mother with whom he has a clear bond. </p>
<p>And, equally, he has inalienable rights. We bear an inalienable responsibility to protect and prioritise these rights. </p><img src="https://counter.theconversation.com/content/30716/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The current debate about commercial surrogacy has focused on the competing needs of couples or individuals desperate to have children, and the exploitation of vulnerable women in low-income countries…Liz Bishop, Lecturer in Public Health and Human Rights, Monash UniversityBebe Loff, Associate Professor and Director of Michael Kirby Centre for Public Health & Human Rights, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.