tag:theconversation.com,2011:/es/topics/gammy-11859/articlesGammy – The Conversation2015-06-24T01:33:56Ztag: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>
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<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/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.tag:theconversation.com,2011:article/303512014-08-11T20:26:17Z2014-08-11T20:26:17ZWhy should we offer screening for Down syndrome anyway?<figure><img src="https://images.theconversation.com/files/56157/original/bq57f8xt-1407738219.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">For the most part, pregnant women wish to remain pregnant – no matter how they came to be so.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/jerrylai0208/14281758292">Jerry Lai/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The details of a surrogacy case involving an Australian couple commissioning a pregnancy in Thailand have created outrage in all sorts of quarters. But the father’s admission that he would have asked the surrogate mother to terminate her pregnancy if he’d known baby Gammy had Down syndrome didn’t cause indignation in anywhere the same scale.</p>
<p>The notion of disability – and how we value or devalue people with it – makes many uncomfortable. Nevertheless, the screening most pregnant women choose to determine whether their child will have Down syndrome, and the terminations that result from it, are widely practised.</p>
<h2>Screening for abnormalities</h2>
<p>At around 12 weeks gestation, a woman may elect to have a combined screening test involving an ultrasound and a blood test. The results from these investigations provide a probability of the fetus having one of a few chromosomal trisomy conditions. </p>
<p>These conditions result from having three copies of a chromosome, rather than the usual two. They can be lethal in utero or lead to a very short life (such as with trisomy 18, known as Edwards syndrome and trisomy 13, known as Patau syndrome), or a spectrum of mild to significant intellectual disability, often presenting with cardiac problems (trisomy 21 - Down syndrome).</p>
<p>Based on this probabilistic information, the woman can then decide whether she would like to obtain further, and likely more accurate, information. </p>
<p>At the moment, this usually involves invasively obtaining a sample from the placenta or amniotic fluid. Some women decide to have this, some do not. And some will be informed that their fetus will be born with a chromosomal trisomy. </p>
<p>Of these, most will terminate. We don’t know how many women do this in Australia as data is not kept in a consistent way between states. But in the United Kingdom, <a href="http://www.bmj.com/content/339/bmj.b3794">a 2009 paper</a> gave the termination rate for detected cases of Down syndrome as 92%. </p>
<p>The ethical question is whether such screening, and ending those pregnancies where a condition is identified, is acceptable. </p>
<h2>Making choices</h2>
<p>For the most part, pregnant women wish to remain pregnant – no matter how they came to be so. While it is one thing for a male parent of a surrogate baby to claim, after the fact, that he would have requested a termination, the actual decisions faced by pregnant women are much less frivolous. </p>
<p>Screening is primarily about facilitating choice through information provision; it’s not about putting women on a conveyor belt to termination. </p>
<p>Because our society has differing views on conditions such as Down syndrome, some couples wish to access information to inform their decision-making in pregnancy. </p>
<p>Some wish to have this information to help adjust to life with a child who has a disability; others use it to plan for birth; while others might choose to end the pregnancy and try again. </p>
<p>This latter decision is not necessarily borne from inherent prejudice, but a recognition that certain conditions may mean their child could have profound problems. Ending a pregnancy is not something taken lightly, whatever the circumstances. </p>
<p>The moral status of the fetus is an intractable issue in our society. Nevertheless, termination is possible at certain points in pregnancy and for certain reasons. </p>
<p>Medical grounds, such as ending a pregnancy where the fetus will be born with Down syndrome, are permitted up to a point. </p>
<h2>Using knowledge wisely</h2>
<p>Still, the acceptability of both the offer to screen for abnormalities in pregnancy, and the action taken on the basis of its results should not detract from several important considerations. </p>
<p>First, women or couples must make a choice about screening and potential termination with access to full and balanced information. There’s <a href="http://www.nature.com/gim/journal/v7/n5/abs/gim200567a.html">some evidence</a> to suggest women don’t always have enough knowledge to make an informed choice. It must also be made clear that undergoing any test is a choice, not an expectation. </p>
<p>Second, women need to have time to think about their choices, which are often difficult and made under an inherent time pressure. </p>
<p>Third, we must not use screening as an excuse for withdrawing practical or psychological support for people who choose to continue a pregnancy that will lead to the birth of a child with a genetic or congenital condition. </p>
<p>Finally, we need to appreciate that although these decisions are made by women and couples based on their individual values, the social context in which they are made is also important. Conditions such as Down syndrome can lead to significant and profound problems, but they don’t always.</p>
<p>We must talk about our attitudes to disability and how we make choices about it. And we should aim for a society that recognises and supports all forms of ability and encourages discussion about our choices.</p><img src="https://counter.theconversation.com/content/30351/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ainsley Newson has previously received funding from the UK National Institute of Health Research for research into ethics and prenatal screening and diagnosis. Ainsley is a member of the NSW Health Clinical Ethics Advisory Panel and the Ethics and Social Issues Committee of the Human Genetics Society of Australasia.</span></em></p>The details of a surrogacy case involving an Australian couple commissioning a pregnancy in Thailand have created outrage in all sorts of quarters. But the father’s admission that he would have asked the…Ainsley Newson, Senior Lecturer in Bioethics, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/303142014-08-11T04:07:45Z2014-08-11T04:07:45ZReject commercial surrogacy as another form of human trafficking<p>The practice of reproductive surrogacy is in the news in Australia because of the story of a <a href="http://www.abc.net.au/news/2014-08-04/baby-gammy-surrogate-mum-says-parents-saw-baby-in-hospital/5647440">Thai child, Gammy</a>, a twin who was apparently abandoned by the buyers because he was sick. They took his healthy sister.</p>
<p>This story should not be seen as just an individual bad news story. It has much to tell us about the effects of commercial surrogacy. This industry is an offshoot of the very profitable <a href="https://theconversation.com/audio-qanda-the-business-of-ivf-28272">reproductive technology industry</a>, which created, through IVF, the possibility of persons buying children in the marketplace. </p>
<p>The surrogacy industry has created the trafficking in women for the use of their wombs. In extreme forms it includes the imprisonment of women in slave camps. It <a href="http://www.nytimes.com/2014/07/06/us/foreign-couples-heading-to-america-for-surrogate-pregnancies.html?hpw&action=click&pgtype=Homepage&version=HpHedThumbWell&module=well-region&region=bottom-well&WT.nav=bottom-well">trafficks babies from one continent to another</a>.</p>
<p>The result is that children can be rejected, left over or abandoned like the sofa that buyers decided was in the end not the right colour. Children have become goods to be traded.</p>
<p>Discussion of surrogacy usually revolves around the rights of the buyers and how the industry can be better regulated. The debate should be about whether such a harmful industry should be permitted at all.</p>
<h2>Transforming the place of motherhood</h2>
<p>The surrogacy industry has transformed the understanding of motherhood. It creates two classes of mothers, birth mothers and commissioning mothers, who may or may not be related to the babies they pay for. An industry created for profit has already upturned generationalism, with grandmothers bearing children for their own daughters.</p>
<p>The women who give birth to the children are called surrogate mothers, in an attempt to distance them from the “real” or commissioning mothers. Yet the surrogate mothers are the persons who have carried the infants in their wombs. They created them out of their flesh and blood for nine months. </p>
<p>They suffer not just the exploitation of having their bodies controlled by others – the buyers, agents and doctors – but then must suffer the psychological effects of having their babies removed. The pain of poor and often desperate women in other countries who are sometimes repeatedly pimped out to baby farms by male partners or families for profit is not considered relevant. They are expected to treat their bodies as factories and their babies as products that are unrelated to their humanness. </p>
<p>Trafficking is made easier because the surrogacy industry has separated childbirth from motherhood. Once the ability to give birth was a source of women’s strength, something women could do in a male-dominated society that men could not. It is now possible for men to acquire children without the bother of developing a relationship with a woman.</p>
<p>A Japanese businessman has reportedly managed to <a href="http://www.abc.net.au/news/2014-08-09/japanese-businessman-fathered-13-surrogate-babies-in-thailand2/5660482">acquire 13 babies</a> by surrogacy, nine of whom were kept in a nursery he sometimes visited. He intended to take them to Japan to run his business when they grow up. </p>
<p>This story reveals the problems that can arise when single men or men in couples can buy children who will have no mother of any kind. These children may be acquired for the purposes of abuse, and there may be no woman with an interest in the child’s welfare around to protect that child. </p>
<p>The Australian buyer of the Thai child has a wife, but has been found to be a serious <a href="http://www.abc.net.au/news/2014-08-05/baby-gammy-father-has-sex-offence-conviction/5649966">child sex offender</a>, which raises questions about his intentions for the child. There are precedents of the creation of children for the specific purpose of sexual abuse. The father in the baby Gammy case has <a href="http://www.abc.net.au/news/2014-08-10/baby-gammy-father-denies-threat-to-twin/5661242">publicly denied</a> this was his intention. </p>
<p>A Queensland male gay couple <a href="http://www.smh.com.au/national/named-the-australian-paedophile-jailed-for-40-years-20130630-2p5da.html">were imprisoned</a> last year for, the police believe, creating a boy child by surrogacy specifically for abuse. The boy was acquired from a Russian surrogate mother and the abuse started shortly after birth. Sexual abuse of him was uploaded to a boy lovers’ site and he was taken around the world for abuse by other paedophiles.</p>
<h2>Money for babies invites trafficking</h2>
<p>The surrogacy industry not only rips apart the connection between motherhood and
reproduction, but undermines the welfare of trafficked women and babies. It raises disturbing questions about what children are for, an end in themselves or to serve the purposes of their buyers.</p>
<p>Surrogacy industry entrepreneurs are <a href="http://www.abc.net.au/news/2014-08-06/advocacy-group-urges-nt-to-regulate-surrogacy/5653704">campaigning to change the law</a> in Australia, where only altruistic surrogacy is allowed. Their aim is to enable the commercial surrogacy industry to grow in this country. A supposedly well-regulated industry here, they say, is the answer to abuses overseas.</p>
<p>It is time to open a debate among feminists, ethicists and politicians about the implications of the commercial industry for the surrogates and for the children. While three Australian states now have laws to prevent the use of surrogates in other countries, these need to be adopted in all states. </p>
<p>Any attempt to recreate in Australia the harms that the commercial surrogacy industry has created elsewhere should be resisted.</p><img src="https://counter.theconversation.com/content/30314/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sheila Jeffreys 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 practice of reproductive surrogacy is in the news in Australia because of the story of a Thai child, Gammy, a twin who was apparently abandoned by the buyers because he was sick. They took his healthy…Sheila Jeffreys, Professor of Sexual Politics, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/303392014-08-09T09:45:29Z2014-08-09T09:45:29ZBaby Gammy: tales of the unexpecting<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/56087/original/6n628gbg-1407573661.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/56087/original/6n628gbg-1407573661.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/56087/original/6n628gbg-1407573661.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/56087/original/6n628gbg-1407573661.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/56087/original/6n628gbg-1407573661.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/56087/original/6n628gbg-1407573661.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/56087/original/6n628gbg-1407573661.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="attribution"><span class="source">EPA/Rungroj Yongrit</span></span>
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<p>Once in a while an unexpected event shines a revealing light on aspects of international relations we generally neglect or would rather not think about. The surrogacy saga that has seemingly transfixed the nation tells us something important about the relationships that exist between people on various parts of the planet. It also tells us something about our values and priorities. </p>
<p>It is not hard to see why the media has worked itself up into a lather about this particular story. Babies are good value at any time, of course – witness the obsession with prince George – but when they are abandoned by seemingly heartless parents with apparently questionable personal histories, the angles are endless. </p>
<p>The idea that one of ‘us’ has been left behind in foreign parts is another compelling and unsettling part of the story. Human interest doesn’t get much more absorbing than this.</p>
<p>But if we step back from the immediate media frenzy, some bigger issues come into view which are – or ought to be – central to this case. At the very least, the emergence of ‘surrogacy services’ gives a whole new meaning to the phrase ‘the division of labour’. </p>
<p>When it’s happening across national borders it also serves to highlight the very different roles and possibilities that are open to people, simply on the <a href="https://theconversation.com/the-political-and-geographical-limits-of-morality-28778">basis of where they live</a>.</p>
<p>It’s not just the fact that this looks like people in the wealthy western world exploiting their impoverished neighbours that raises troubling moral questions, however. Perhaps we should be used to the idea that no aspect of human existence is immune from commodification and the pervasive influence of market forces. </p>
<p>They don’t call prostitution – sorry, sex work – the oldest profession for no reason, after all. But surrogacy seems to be raising – or should it be lowering? – the bar even further.</p>
<p>The most positive spin that can be put on this niche market is that the resultant offspring are at least wanted, to judge by the prices charged by baby brokers at least. The sad reality is that many millions arrive on the planet unwanted, unplanned and most emphatically unloved. One of the major things we have a superabundance of, in fact, is babies.</p>
<p>One of the most striking contradictions highlighted by this story is that many in the western world continue invest in expensive reproductive technologies and practices at precisely the same time that 10 million children die each year in the developing world before their fifth birthdays. The most common cause is easily – and cheaply – treatable diarrhoea. </p>
<p>Meanwhile, the IVF industry in Australia turns over A$500 million a year and rising.</p>
<p>You don’t have to be Charles Darwin to realise that urges don’t get much more elemental than reproductive ones. Weighing into a debate about demography and its implications is consequently asking for trouble. And yet there’s something troubling morally and practically about the way the human race increases at times; indeed, especially at this time in history, which we are learning to call the Anthropocene.</p>
<p>The new language reflects a new reality: there are now so many of us on the planet that we are influencing natural processes and literally reshaping the earth. The ‘good’ news is that much of the population growth is happening amongst the world’s most impoverished people who will leave only the most minimal trace of their individual passing – unlike us. </p>
<p>The challenge, perhaps, is to develop some collective sense of purpose and fate that mirrors the reality of our species’ place and impact on the planet. </p>
<p>One expression of this could be to use some of the money that’s spent on exotic reproductive practices (and much else) in the rich world to fund health and education programs, especially for women, in some of the poorer parts of the world. Access to cheap and effective birth control looks a much more sustainable, sensible and defensible global priority than more technological breakthroughs in reproductive technology.</p>
<p>The generous response by many Australians to the plight of one child was impressive and well-intentioned no doubt. Putting an individual human face on a complex problem plainly has its merits. </p>
<p>Indeed, the scale of the problem facing far less fortunate and – yes – far more disadvantaged children in remoter parts of the globe is quite overwhelming and potentially disempowering. This is why aid policy remains such an important expression of a country’s priorities.</p>
<p>Many have criticised the Abbott government’s mean-spirited approach to foreign aid and much else – apart from his bizarrely generous, seemingly non-negotiable proposed paid parental leave scheme. Individuals might be forgiven for taking their cue from a government that is preoccupied with family values. </p>
<p>Yet such insularity will be difficult to sustain in a world that keeps on reminding us just how interconnected and interdependent we ultimately are.</p><img src="https://counter.theconversation.com/content/30339/count.gif" alt="The Conversation" width="1" height="1" />
Once in a while an unexpected event shines a revealing light on aspects of international relations we generally neglect or would rather not think about. The surrogacy saga that has seemingly transfixed…Mark Beeson, Professor of International Politics, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/300812014-08-04T20:42:36Z2014-08-04T20:42:36ZBaby Gammy case reveals murky side of commercial surrogacy<figure><img src="https://images.theconversation.com/files/55668/original/23mkmq4w-1407136757.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Reforms around surrogacy should focus on protecting women and children, not the 'market'.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-133989620/stock-photo-parent-holding-newborn-baby-feet-family-concept.html?src=pd-photo-208385365-3">INSAGO/Shutterstock</a></span></figcaption></figure><p>The story of <a href="http://www.abc.net.au/news/2014-08-04/wa-couple-denies-they-abandoned-baby-gammy/5644850">baby Gammy</a> and his “surrogate” mother has captured the world’s attention, highlighting just how complex and fraught commercial surrogacy arrangements can be. It also shows Australia is right to <a href="https://theconversation.com/not-for-profit-the-case-against-commercial-surrogacy-18512">prohibit</a> commercial surrogacy – and why other countries should do the same. </p>
<p>Gammy <a href="http://www.abc.net.au/news/2014-08-04/wa-couple-denies-they-abandoned-baby-gammy/5644850">was born</a> with Down syndrome and a congenital heart condition. He is a twin, conceived as a result of a commercial surrogacy arrangement between an unidentified Australian couple (the “genetic parents”) and Pattaramon Chanbua, a Thai national whose family was struggling to pay off debts. Ms Chanbua <a href="http://online.wsj.com/articles/abandonment-of-thai-baby-raises-questions-on-global-surrogacy-rules-1407075668">was paid</a> 350,000 baht (A$11,700) to carry and bear a child. </p>
<p>According to Ms Chanbua, when it was discovered she was carrying twins, <a href="http://online.wsj.com/articles/abandonment-of-thai-baby-raises-questions-on-global-surrogacy-rules-1407075668">she was offered</a> an additional 70,000 Baht (A$2,000). But when doctors further discovered one of the babies had Down syndrome, she was told to abort the affected twin. She refused on religious grounds and, after the twins’ birth, the Australian couple left with only the healthy girl. </p>
<p>The Australian father has <a href="http://www.abc.net.au/news/2014-08-04/wa-couple-denies-they-abandoned-baby-gammy/5644850">since claimed</a> the couple did not know about the other child. But Ms Chanbua states the father came to the hospital to see the twins. It’s unclear <a href="http://www.theguardian.com/world/2014/aug/04/baby-gammy-australian-citizenship-government-suggests">what role</a> the surrogacy agency played. </p>
<p>However it played out, baby Gammy was left with Ms Chanbua, who loves and cares for him, but struggles to pay his medical expenses. The story has attracted international outrage, and a <a href="http://www.gofundme.com/bxci90">public campaign</a> to raise money for baby Gammy’s care. </p>
<h2>The legal situation</h2>
<p>The majority of nations that regulate surrogacy worldwide, prohibit commercial surrogacy. Such prohibitions are largely based on views that commercial surrogacy commodifies women and children, and poses an unacceptable risk of exploitation and human trafficking. </p>
<p>All Australian states and the Australian Capital Territory prohibit such arrangements here. New South Wales, Queensland and the ACT further prohibit people from travelling to other countries to engage in such practices. The Australian government lists these prohibitions in its <a href="http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/default.aspx">reports</a> to the United Nations to show we meet our international obligations against the sale and trafficking of children. </p>
<p>However, a minority of nations have allowed (or continue to allow) commercial surrogacy to occur: Guatemala, Russia, the Ukraine, India and some US states. As a consequence, brokers, lawyers, and clinics have encouraged people wishing to have children to travel to such destinations to “realise their dreams” of having a family. </p>
<p>At the time of the arrangement that resulted in Gammy’s birth, <a href="http://www.thailawforum.com/new-draft-surrogacy-law-thailand.html">draft laws in Thailand</a> had not yet been enacted, and the practice appears to have been unregulated. Thailand was seen as a particularly favourable destination as the cost was also low, compared to the United States, for example, where surrogacy can cost up to $100,000. </p>
<h2>When things go wrong</h2>
<p>Some people who engage in commercial surrogacy are already breaking the law in their own country. Others have found themselves in complex situations where the legal parentage and citizenship of the children is unclear. </p>
<p>In addition, people who remove children from Thailand without the approval of the Thai government would be subject to <a href="http://www.no-trafficking.org/content/Laws_Agreement/laws_agreement_pdf/trafficking_in_persons_act_b.e%202551%20%28eng.%29.pdf">Thai anti-trafficking laws</a>. </p>
<p>The baby Gammy story also highlights human rights issues in commercial surrogacy arrangements. </p>
<p>Note that the request for Ms Chanbua to have an abortion would have been <a href="http://www.thailandlaw.org/legality-of-abortion-in-thailand.html">illegal in Thailand</a>, unless her health was at risk, or the pregnancy was a consequence of sexual assault. Neither appears to have been the case. </p>
<p>Ms Chanbua refused on religious grounds, and by choice carried the pregnancy to term. But other women may not be able to do the same. In India, <a href="http://www.bbc.co.uk/programmes/b03c591s">some women</a> are required to sign a contract agreeing that they will abort on demand. </p>
<h2>No room for commercial surrogacy</h2>
<p>Some surrogate advocates, <a href="http://www.theage.com.au/national/australian-governments-need-to-rethink-ban-on-commercial-surrogacy-20140804-100dmt.html">lawyers</a> and agencies argue that it would be better to permit commercial surrogacy in Australia, as if we could somehow prevent exploitation and commodification, as well as the social, cultural, economic and racial disparities. </p>
<p>Some point to the “happy stories” of surrogacy fulfilling the dreams of would-be parents of having a family. And no doubt, there are families who must be happy having had a child they can call their “own”. </p>
<p>But what we must not forget are the realities of this “business”. We so often do not hear about the number of abortions it took to get the final product right, or the miscarriages, the early births, the pregnancy complications, the babies left behind, or the reasons why the surrogate entered the arrangement for money in the first place. Whenever commercial surrogacy takes place, there are risks and power imbalances. </p>
<p>When the surrogacy “support services” refer to “the market” in which they operate, we, as a nation, should stop and think. We must not ignore the extent to which commercial surrogacy arrangements can exploit and commodify women and children. We might also think about how such a <a href="http://www.nytimes.com/2014/07/28/us/surrogacy-agency-planet-hospital-delivered-heartache.html?_r=0">business preys</a> on people’s desires to have children. </p>
<p>While baby Gammy’s story certainly calls for government support and action, the focus should <em>not</em> be on how to support the commercial surrogacy “market”, or to broaden the “market” to Australia. </p>
<p>Rather, we should focus on how to protect the rights and welfare of children and women in line with global human rights standards. This includes the continued prohibition of commercial surrogacy arrangements. </p><img src="https://counter.theconversation.com/content/30081/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sonia Allan 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 story of baby Gammy and his “surrogate” mother has captured the world’s attention, highlighting just how complex and fraught commercial surrogacy arrangements can be. It also shows Australia is right…Sonia Allan, Senior Lecturer, Law, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.