tag:theconversation.com,2011:/au/topics/surrogacy-4090/articlesSurrogacy – The Conversation2024-01-10T13:30:13Ztag:theconversation.com,2011:article/2207612024-01-10T13:30:13Z2024-01-10T13:30:13ZPope Francis called surrogacy ‘deplorable’ – but the reasons why women and parents choose surrogacy are complex and defy simple labels<figure><img src="https://images.theconversation.com/files/568467/original/file-20240109-17-1nw9j8.jpg?ixlib=rb-1.1.0&rect=137%2C31%2C6938%2C4678&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pope Francis baptizes 16 infants in the Sistine Chapel on Jan. 7, 2024, in Vatican City.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pope-francis-baptises-16-infants-in-the-sistine-chapel-on-news-photo/1914446578?adppopup=true">Vatican Media via Vatican Pool/Getty Images</a></span></figcaption></figure><p>Pope Francis made headlines on Jan. 8, 2024, when he called for a global surrogacy ban, <a href="https://www.nytimes.com/2024/01/08/world/europe/pope-francis-surrogacy-ban.html">stating</a>, “I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs.”</p>
<p>The use of surrogacy, in which a woman carries and delivers a child for someone else, has grown exponentially in <a href="https://doi.org/10.1016/j.fertnstert.2016.03.050">recent years</a> and is expected to <a href="https://www.gminsights.com/industry-analysis/surrogacy-market">continue to do so</a>. While headlines often surface when celebrities like <a href="https://www.vanityfair.com/style/paris-hilton-on-why-she-chose-surrogacy-for-her-children">Paris Hilton</a> grow their family using the technology, it also gets attention on the rare occasion a surrogate <a href="https://www.dailymail.co.uk/news/article-1356176/Surrogate-mother-wins-case-baby-giving-birth.html">refuses to relinquish the child they carried</a>, or when <a href="https://www.harpercollins.com/products/the-red-market-scott-carney?variant=32123686453282">surrogates experience exploitation</a>.</p>
<p>Such human rights violations appear to be the reason that Francis condemned the practice. But in so doing, I argue, the pope is failing to recognize how varied and nuanced the experiences of intended parents, surrogates and children are.</p>
<p><a href="https://www.baylorpress.com/9781481310567/conceiving-family/">I have researched surrogacy</a> <a href="https://candler.emory.edu/faculty-profiles/danielle-tumminio-hansen/">for over a decade</a> and have learned many things: Some women indeed become surrogates out of desperation and <a href="https://cup.columbia.edu/book/wombs-in-labor/9780231169905">are abused in the process</a>, as the pope says. But others, like the Christian ethicist <a href="https://www.sup.org/books/title/?id=31699">Grace Kao</a>, are thriving professionals who make the choice for altruistic reasons and never accept remuneration.</p>
<p>The complex reasons why women become surrogates and why parents choose to create families in this way <a href="https://oneill.law.georgetown.edu/a-lack-of-consensus-around-surrogacy-regulation-at-the-national-level/">make it nearly impossible</a> to issue a universal conclusion about it. Instead, like many technologies, surrogacy’s ethical value is dependent upon the people and systems who use it. </p>
<h2>Catholicism and surrogacy</h2>
<p>While the pope framed his condemnation of surrogacy as a human rights abuse, the Catholic tradition has <a href="https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html">consistently opposed</a> <a href="https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20081208_dignitas-personae_en.html">surrogacy, in vitro fertilization</a> and <a href="https://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/respect-for-unborn-human-life">abortion</a> on the grounds that they violate natural law. </p>
<p>Natural law is a philosophy that states there are certain unchangeable parts of human nature that God endows. Catholic theologians who support this basic view extrapolate that intercourse within heterosexual marriage is the only acceptable way to reproduce, that life begins at conception, and that an embryo has a right to life from conception until natural death.</p>
<p>Hence, the Roman Catholic Church only encourages reproduction within the confines of heterosexual marriage, and when a heterosexual couple cannot conceive via intercourse, they are encouraged to adopt or remain childless.</p>
<p>The church has consistently condemned IVF because conception takes place outside of heterosexual intercourse. IVF results in the destruction of embryos and involves conception via a test tube. The church likewise has never supported surrogacy, so the pope’s recent assessment of surrogacy as “despicable” is consistent with the church’s overall views of reproduction.</p>
<p>Nonetheless, surrogacy is the only form of assisted reproduction documented in the Bible, unless one considers Mary’s conception of Jesus to be a form of assisted reproduction. In the <a href="https://www.biblegateway.com/passage/?search=Genesis%2016-18&version=NRSVUE">Book of Genesis</a>, the wife of Abraham begs her husband to have sex with <a href="https://www.researchgate.net/publication/301577539_Hagar_the_Egyptian_Wife_Handmaid_and_Concubine">her slave Hagar</a> in order to procreate. Sarah abuses the slave and orchestrates both sex and procreation without Hagar’s consent. </p>
<p>Hagar eventually bears a son <a href="https://www.usnews.com/news/religion/articles/2008/01/25/why-scholars-just-cant-stop-talking-about-sarah-and-hagar">named Ishmael</a>. Later, Sarah demands that both Hagar and Ishmael be cast out into the wilderness. Muslims regard Ishmael as a prophet and believe he and Abraham built <a href="https://www.khanacademy.org/humanities/ap-art-history/introduction-cultures-religions-apah/islam-apah/a/the-kaaba">the Kaaba</a> in Mecca, Saudi Arabia.</p>
<h2>Myths and fears</h2>
<figure class="align-center ">
<img alt="Four women standing together wearing masks, with two of them holding new-born babies." src="https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&rect=47%2C31%2C5176%2C3554&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Nurses with babies born to Ukrainian surrogate mothers in Kyiv.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/nurses-hold-babies-as-foreign-couples-gather-to-collect-news-photo/1219071333?adppopup=true">Sergei Supinsky/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Fast forward to modern times, and surrogacy is now performed predominantly in high-priced in vitro fertilization centers in one of two ways. In “traditional surrogacy,” the fertilized egg belongs to the surrogate. In “gestational surrogacy,” which is <a href="https://surrogate.com/about-surrogacy/types-of-surrogacy/what-is-traditional-surrogacy/">more common today</a>, the fertilized egg comes from either the intended mother or a donor.</p>
<p>In both cases, that egg combines with a sperm to become an embryo that grows in the surrogate’s womb and not the intended mother’s.</p>
<p>Gestational surrogacy may be preferable because it allows intended mothers to maintain a genetic connection with their child. Others may prefer it because of fears that a surrogate could lay claim to the child with whom <a href="https://www.americansurrogacy.com/blog/the-legal-and-emotional-risks-of-traditional-surrogacy/">she had a biological connection</a>.</p>
<p>The concern that a surrogate will try to steal or adopt a child is one of many legal and ethical fears surrounding surrogacy. In the 1980s, the <a href="https://law.justia.com/cases/new-jersey/supreme-court/1988/109-n-j-396-1.html">Baby M Case</a> in the United States attracted much media attention because it tapped into these fears. In this situation, the surrogate, named Mary Beth Whitehead, attempted to retain custody of the baby she birthed. </p>
<p>The case <a href="https://doi.org/10.1093/humrep/deu339">fueled a stereotype</a> of surrogates as emotionally unstable, defying the reality that surrogates undergo psychological testing before participating in a procedure.</p>
<p>Documented instances of surrogates retaining children are also rare. Research shows that surrogates often experience pregnancy and birth differently than they did with their <a href="https://academic.oup.com/humrep/article/33/4/646/4941810">own children</a>. They also often see themselves as <a href="https://academic.oup.com/california-scholarship-online/book/17848">heroes or gift givers</a> instead of mothers. </p>
<p>If the public perceives surrogates negatively, intended parents often fare no better. They are often categorized as selfish, desperate and rich, especially when they choose surrogacy <a href="https://www.theguardian.com/lifeandstyle/2019/may/25/having-a-child-doesnt-fit-womens-schedule-the-future-of-surrogacy">without a medical reason</a>. </p>
<p>Those popular images of intended parents fail to account for the <a href="https://www.apa.org/pubs/books/reproductive-trauma-second-edition">reproductive trauma</a> many of them experience prior to turning to surrogacy. The decision to hire a surrogate is <a href="https://syndicate.network/symposia/theology/conceiving-family/#:%7E:text=In%20Conceiving%20Family%3A%20A%20Practical,class%20and%20are%20often%20white">often the last option</a> for parents who have tried everything else and are, as <a href="https://www.baylorpress.com/9781481310567/conceiving-family/">I’ve proposed in my own research</a>, attempting to write a happy ending to the story of their reproductive lives.</p>
<p><a href="https://www.filia.org.uk/latest-news/2023/4/19/dont-buy-adopt-stop-surrogacy-now">Critics</a> counter that individuals who use surrogates should be turning to adoption instead. However, this logic fails to recognize that adoption can be traumatic <a href="https://doi.org/10.1016/j.chiabu.2021.105309">for the child</a> and <a href="https://pubmed.ncbi.nlm.nih.gov/2276293/">the birth mother</a>. Adoption, therefore, isn’t a cure-all for individuals who can’t conceive via heterosexual intercourse.</p>
<h2>Ethical concerns about surrogacy</h2>
<p>It is true that surrogacy is expensive, at least in the U.S., where use of the technology routinely costs over <a href="https://money.usnews.com/money/personal-finance/family-finance/articles/how-much-surrogacy-costs-and-how-to-pay-for-it">US$100,000</a>. The cost is so extreme because intended parents pay health care fees for both themselves and the surrogate, many of which aren’t covered by insurance. </p>
<p>They also have to pay legal and agency fees and compensate the surrogate, which alone can range from <a href="https://www.westcoastsurrogacy.com/become-a-surrogate-mother/surrogate-mother-compensation">$45,000 to $75,000</a>. Contrast that price tag to the one in India prior to its ban on international surrogacy in 2015: Couples who traveled there could expect to spend <a href="https://www.motherjones.com/politics/2010/04/surrogacy-tourism-india-nayna-patel/">$15,000 to $20,000</a> in total for their surrogacy journey. The extreme costs of surrogacy in the U.S. also limit its availability to the wealthy. </p>
<p>In addition, feminists are divided on how surrogacy affects women. Some feminists feel that surrogates have a right to <a href="https://www.jstor.org/stable/3174860">choose what to do with their bodies</a>. Others object to surrogacy on the grounds that systemic oppression drives women into surrogacy, or that it’s unethical for people to <a href="https://cup.columbia.edu/book/wombs-in-labor/9780231169905">buy women’s bodies</a>. </p>
<p><a href="https://www.motherjones.com/politics/2010/04/surrogacy-tourism-india-nayna-patel/">Cases documented in India</a> support these concerns. Investigative journalist <a href="https://www.harpercollins.com/products/the-red-market-scott-carney?variant=32123686453282">Scott Carney</a> found one prominent Indian surrogacy clinic where surrogates were kept in crowded bedrooms on restricted diets and forced to have Cesarean sections in order to streamline the labor and delivery process. </p>
<p>Scholars also worry about surrogacy’s <a href="https://cbc-network.org/issues/making-life/surrogacy/?fbclid=IwAR13wlHiYvqQ_crLOiatzk6XpkFvp0WKXBWOYfi4BURgMLm00aY4EZDC9Sk">impact on children</a>.
Extensive research hasn’t been conducted with children of surrogates, but research by social scientists studying children born via egg and sperm donation largely mirrors the findings of adoption research: Children have questions about their identity, and they find answers from individuals who are <a href="https://academic.oup.com/humrep/article/15/9/2041/2915461">part of their birth story</a>.</p>
<p>Yet agencies and governments rarely regulate how surrogates, intended parents and children interact following the baby’s birth. </p>
<h2>The case for surrogacy</h2>
<figure class="align-center ">
<img alt="A woman in a green shirt stands in front of colorful red and orange flowers." src="https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.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">Actress Gabrielle Union has talked openly about her surrogacy journey.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/gabrielle-union-attends-the-veuve-clicquot-polo-classic-at-news-photo/1344504189?adppopup=true">Frazer Harrison/Getty Images</a></span>
</figcaption>
</figure>
<p>Such objections might lead to the conclusion that there is never a reason to hire a surrogate. But this might be too simplistic. Even with the documented struggles on the parts of both intended parents and surrogates, many are profoundly grateful for the technology.</p>
<p>Intended parents often feel surrogates are “<a href="https://www.ucpress.edu/book/9780520259645/birthing-a-mother">gifts from God</a>” who help them reach their dream of parenthood. Meanwhile, some surrogates believe their powers of procreation provide them with a unique opportunity to help others. Many surrogates see their ability to create life as a source of power, a profound act of altruism that is part of their legacy.</p>
<p>When I spoke with a group of surrogates in Austin, Texas, while conducting research for my book, I found that their stories aligned with <a href="https://www.routledge.com/Surrogate-Motherhood-Conception-In-The-Heart/Ragone/p/book/9780367289249">the findings of other researchers</a> who discovered that many surrogates had positive experiences in which they <a href="https://www.ucpress.edu/book/9780520259645/birthing-a-mother">experienced themselves as heroes</a>. These women felt empowered because they helped infertile heterosexual couples and <a href="https://doi.org/10.1016/j.rbms.2018.10.019">gay couples</a> create families. Without surrogacy, these individuals would have no way to have a genetic connection with their children. </p>
<p>The surrogates acknowledged that sometimes intended parents could be difficult, that pregnancy and labor could be challenging, and that it could be confusing when a checkout clerk at the grocery store asked what they were planning to name the baby.</p>
<p>Becoming a parent through surrogacy can be awkward and humbling, confusing and miraculous all at the same time.</p>
<p>But when surrogates and intended parents can act freely, with <a href="https://www.ucpress.edu/book/9780520259645/birthing-a-mother">appropriate regulations and the support of society</a>, there is the potential for them to discover that family is not just biological but also social and relational. In those encounters, many experience the technology as life-giving, both metaphorically and literally.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/becoming-a-parent-through-surrogacy-can-have-ethical-challenges-but-it-is-a-positive-experience-for-some-167760">article first published on Oct. 6, 2021</a>.</em></p><img src="https://counter.theconversation.com/content/220761/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danielle Tumminio Hansen 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>Surrogacy can exploit women, but others may choose to be involved for altruistic reasons. A scholar points out that surrogacy’s ethical value is dependent upon the people and systems who use it.Danielle Tumminio Hansen, Assistant Professor of Practical Theology & Spiritual Care, Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2061822023-11-09T01:26:42Z2023-11-09T01:26:42ZIt’s hard to find a surrogate in Australia. But heading overseas comes with risks<figure><img src="https://images.theconversation.com/files/532120/original/file-20230615-27-n0wdqe.jpg?ixlib=rb-1.1.0&rect=21%2C133%2C4656%2C3331&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/FqqaJI9OxMI">Unsplash/Kelly Sikkema</a></span></figcaption></figure><p>Surrogacy offers the chance of parenthood for those who can’t carry a pregnancy for medical or social reasons. </p>
<p>In a surrogacy arrangement, a surrogate gives birth to a baby for the intended parents to raise. Most intended parents are heterosexual or gay couples, but single people can also use surrogacy to have a child. </p>
<p>In the 2021–2022 financial year, <a href="https://www.homeaffairs.gov.au/foi/files/2022/fa-220800210-document-released.PDF">213</a> Australian babies were born through international surrogacy – an arrangement between Australian intended parents and a foreign surrogate. Just <a href="https://npesu.unsw.edu.au/sites/default/files/npesu/data_collection/Assisted%20Reproductive%20Technology%20in%20Australia%20and%20New%20Zealand%202021.pdf">100</a> surrogacy births were reported by Australian and New Zealand fertility clinics in 2021. </p>
<p>Australian surrogacy laws and <a href="https://www.nhmrc.gov.au/about-us/publications/art">ethical guidelines</a> aim to protect the interest of everyone involved with surrogacy. They also recognise the most important consideration of all is the welfare of the children born.</p>
<p>However, children born through international surrogacy aren’t protected by Australian laws because they’re born overseas. Our new <a href="https://doi.org/10.1080/14647273.2023.2270157">research</a> shows this can increase the physical and psychological risks to the child. </p>
<p>Making surrogacy easier to access in Australia could protect future children born through surrogacy. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/becoming-a-parent-through-surrogacy-can-have-ethical-challenges-but-it-is-a-positive-experience-for-some-167760">Becoming a parent through surrogacy can have ethical challenges – but it is a positive experience for some</a>
</strong>
</em>
</p>
<hr>
<h2>How does international surrogacy impact children?</h2>
<p>We surveyed more than 300 Australians who were parents through surrogacy, or were planning on having a child via surrogacy. We asked if they had picked international or domestic surrogacy and why, and we asked about the fertility treatment they and their surrogate received.</p>
<p>Respondents who had a child through international surrogacy commonly reported using two fertility treatments currently <a href="https://www.nhmrc.gov.au/about-us/publications/art">banned</a> in Australia: multiple embryo transfer and anonymous egg donation. </p>
<p>Surrogates sometimes supply their own egg, but mostly the egg is supplied from one of the intended parents or a donor. Once the egg has been fertilised, the resulting embryo is then transferred to the surrogate.</p>
<p>In Australia, only one embryo can be transferred to surrogates at a time. This is because multiple embryo transfer <a href="https://doi.org/10.1080/14647273.2020.1785643">increases the risk</a> of twin, or even triplet, pregnancies. These pregnancies are linked to higher rates of complications for the pregnant woman and the baby, including preterm birth. Preterm birth is when a baby is born before 37 weeks of pregnancy and is the <a href="https://www.who.int/en/news-room/fact-sheets/detail/preterm-birth">main cause</a> of death in children below the age of five.</p>
<figure class="align-center ">
<img alt="Dad carries his twins in a field, while an older child runs ahead" src="https://images.theconversation.com/files/532123/original/file-20230615-27-5yx7gk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532123/original/file-20230615-27-5yx7gk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532123/original/file-20230615-27-5yx7gk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532123/original/file-20230615-27-5yx7gk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532123/original/file-20230615-27-5yx7gk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532123/original/file-20230615-27-5yx7gk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532123/original/file-20230615-27-5yx7gk.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">Multiple births are more likely with international surrogacy.</span>
<span class="attribution"><a class="source" href="https://unsplash.com/photos/O-RKu3Aqnsw">Unsplash/Juliane Liebermann</a></span>
</figcaption>
</figure>
<p>Of the survey respondents who had completed international surrogacy, 37% reported multiple embryos had been transferred to their surrogate. Some 27% of parents through international surrogacy had a preterm baby and 11% had twins or triplets. In contrast, just 11% of parents through surrogacy in Australia had a preterm baby and none had twins or triplets. </p>
<p>If a donor egg is used in Australia, the donor-conceived person can access information about their donor once they turn 18. Anonymous donation is <a href="https://www.nhmrc.gov.au/about-us/publications/art">not allowed</a> because research shows many people born through egg or sperm donation <a href="https://pubmed.ncbi.nlm.nih.gov/22908619/">want to know</a> the identity of their donor. </p>
<p>Of the respondents who used donor eggs in international surrogacy, 47% said the identity of the donor was anonymous. Australians born through international surrogacy with anonymous egg donors may never know who their genetic mother is.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/who-are-my-parents-why-new-zealands-creaky-surrogacy-laws-are-overdue-for-major-reform-166745">Who are my parents? Why New Zealand’s 'creaky' surrogacy laws are overdue for major reform</a>
</strong>
</em>
</p>
<hr>
<h2>Why choose international surrogacy?</h2>
<p>The most popular reasons for picking international surrogacy were that surrogacy in Australia is long and complicated and it is difficult to find an Australian surrogate. </p>
<p>Most Australian surrogacy arrangements occur between <a href="https://sarahjefford.com/australian-surrogacy-statistics/">friends and family members</a>. If this is not possible, intended parents can join online communities to meet potential surrogates. However, the number of intended parents in these communities far <a href="https://www.surrogacyaustralia.org/surrogacy-process-chart/">outweighs</a> the number of surrogates.</p>
<p>For those lucky to find an Australian surrogate, they must complete a series of legal requirements as part of the arrangement. These requirements protect the interests of surrogacy participants and include legal advice, counselling and a court order to transfer parentage from the surrogate to the intended parents.</p>
<p>With international surrogacy, commercial agencies or brokers can match intended parents to a surrogate and the various Australian legal requirements may not be needed. </p>
<figure class="align-center ">
<img alt="Pregnant women holds her hands under her belly" src="https://images.theconversation.com/files/532122/original/file-20230615-23-whx9eu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532122/original/file-20230615-23-whx9eu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532122/original/file-20230615-23-whx9eu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532122/original/file-20230615-23-whx9eu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532122/original/file-20230615-23-whx9eu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532122/original/file-20230615-23-whx9eu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532122/original/file-20230615-23-whx9eu.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 some countries, you don’t have to go to court for legal parentage of babies born via surrogacy.</span>
<span class="attribution"><a class="source" href="https://unsplash.com/photos/WI-x1wo_Jm4">Unsplash/Omurden Cengiz</a></span>
</figcaption>
</figure>
<h2>How can the risks of international surrogacy be reduced?</h2>
<p>Intended parents considering international surrogacy should choose single embryo transfers and, if required, a known donor. </p>
<p>However, intended parents may not always be equipped with the information or resources to make this choice. Known donors may not always be available overseas and some of our respondents said they transferred multiple embryos because they were following the advice of their doctor. </p>
<p>Most respondents said they would prefer to complete surrogacy in Australia if it were possible. This means if surrogacy was more accessible in Australia, fewer people might go overseas and more babies might be born in Australia where regulations protect the child’s physical and psychological health.</p>
<p>To make surrogacy more accessible, surrogacy laws should be reviewed by an inquiry by the Australian Law Reform Commission. The House of Representatives Standing Committee on Social Policy and Legal Affairs <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Inquiry_into_surrogacy">recommended</a> such an inquiry in 2016. This was never undertaken, but we don’t know why.</p>
<p>The Law Commission of England and Wales and the Scottish Law Commission <a href="https://www.lawcom.gov.uk/project/surrogacy/">recently published</a> recommendations for surrogacy law reform in the United Kingdom. One recommendation removes the need for a court to grant intended parents legal recognition. This is a <a href="https://www.lawgazette.co.uk/news/family-lawyers-welcome-revolutionary-surrogacy-recommendations/5115585.article">welcome</a> step forward. </p>
<p>However, the recommendations have also been <a href="https://www.progress.org.uk/law-commissions-proposals-wont-achieve-surrogacy-modernisation/">criticised</a> for not allowing surrogate compensation, which could discourage some people from becoming surrogates. Compensation is financial acknowledgement of the time and effort involved with the surrogacy pregnancy and is currently not allowed in Australia.</p>
<p>Law reform in Australia must address all barriers for domestic surrogacy, including the shortage of surrogates, to protect the welfare of children born through surrogacy.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/surrogacy-shake-up-in-uk-would-create-uneven-treatment-for-birth-mothers-202872">Surrogacy shake up in UK would create uneven treatment for birth mothers</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/206182/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ezra Kneebone receives funding from the Australian Government Department of Education. </span></em></p><p class="fine-print"><em><span>Karin Hammarberg works for the Victorian Assisted Reproductive Treatment Authority. </span></em></p><p class="fine-print"><em><span>Kiri Beilby 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>Children born through international surrogacy aren’t protected by Australian laws.Ezra Kneebone, PhD Candidate, Monash UniversityKarin Hammarberg, Senior Research Fellow, Global and Women's Health, School of Public Health & Preventive Medicine, Monash UniversityKiri Beilby, Course Coordinator (Graduate Diploma of Reproductive Science), Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2028722023-03-30T16:28:22Z2023-03-30T16:28:22ZSurrogacy shake up in UK would create uneven treatment for birth mothers<figure><img src="https://images.theconversation.com/files/518518/original/file-20230330-1068-4tislc.jpg?ixlib=rb-1.1.0&rect=39%2C39%2C4322%2C2857&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Proposed UK surrogacy law changes raise concerns over unequal treatment of birth mothers</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/close-pregnant-woman-holding-ultrasound-scan-132280757">Phil Jones/Shutterstock</a></span></figcaption></figure><p>Surrogacy, where a woman agrees to carry and give birth to a child for another person or couple to raise, is <a href="https://brilliantbeginnings.co.uk/new-data-family-court-350-percent-growth-surrogacy/">growing in popularity</a>. There aren’t any comprehensive figures on the number of cases (partly because some surrogacy arrangements are <a href="https://uk.practicallaw.thomsonreuters.com/8-560-0205?transitionType=Default&contextData=(sc.Default)">made informally</a>) but it’s clear it’s something more and more couples and individuals are considering.</p>
<p>In the UK, surrogacy laws go back to the 1980s – and are long overdue an update. This is why the Law Commission – which keeps the law under review and recommends reform where it’s needed – has proposed <a href="https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/03/3.-Surrogacy-draft-bill.pdf">changes to the law</a> that aim to make the process smoother and more secure for everyone involved. </p>
<p>Surrogacy laws vary from country to country, but <a href="https://www.legislation.gov.uk/ukpga/1985/49">under the law currently in the UK</a>, the woman who gives birth to a child is always the legal parent at first. However, under the new surrogacy bill, couples or individuals using a surrogate would be the child’s legal parents right from the moment of birth. This change would put UK surrogacy law out of line with UK adoption laws in a concerning way.</p>
<p>Currently, all women who give birth in the UK have the same default rights to the child. This is regardless of whether they’re planning to give the child up for adoption or surrogacy – and whether they’ve used their own egg, a donor’s, or the would-be mother’s egg. But the new bill would create a disparity in how we treat birth mothers in surrogacy cases. </p>
<h2>Here’s why</h2>
<p>Under the current system, the so-called intending parents – the ones using a surrogate to have a baby – apply for what’s known as a parental order six weeks after the child’s birth. This transfers legal parenthood from the surrogate (and her husband or civil partner, if she has one) to the intended parents. </p>
<p>This process can be lengthy: on average it’s around six months, but it can take up to a year <a href="https://www.independent.co.uk/news/uk/home-news/surrogacy-laws-uk-criticism-babies-health-risk-b2233078.html">in some cases</a>. And during this time, the surrogate remains the legal mother – which can cause issues in medical emergencies.</p>
<figure class="align-center ">
<img alt="Couple receiving ultrasound picture from surrogate expectant mother." src="https://images.theconversation.com/files/518514/original/file-20230330-26-tkkbre.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/518514/original/file-20230330-26-tkkbre.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518514/original/file-20230330-26-tkkbre.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518514/original/file-20230330-26-tkkbre.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518514/original/file-20230330-26-tkkbre.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518514/original/file-20230330-26-tkkbre.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518514/original/file-20230330-26-tkkbre.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">Surrogacy law changes in UK could deliver an uneven playing field for birth mothers.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/happy-married-couple-receiving-ultrasound-picture-1095110102">Olena Yakobchuk/Shutterstock</a></span>
</figcaption>
</figure>
<p>Under the proposed new system the need for a parental order is scrapped: the intending parents would have legal parental rights from the moment the child is born. If the surrogate changes her mind and wants to keep the baby, she would have up to six weeks after the birth to apply for a parental order herself. But the intending parents would still retain the legal status they gained when the child was born. </p>
<p>In such a case, the courts would then have to determine whether the intending parents should keep the child, or if the surrogate should be given parental status - so, the reverse of what the UK has at the moment. </p>
<h2>Adoption v surrogacy</h2>
<p>Pre-birth adoption contracts are illegal in the UK – and in fact, across most of the world. Even when a pregnant woman firmly intends to give up the child for adoption, she can only legally consent to this <a href="https://www.legislation.gov.uk/ukpga/2002/38/section/52/enacted?view=plain">six weeks</a> after the birth – just like surrogates under the current law. </p>
<p>The six-week period is an <a href="https://rm.coe.int/1680084823">international standard</a> which is meant to make sure that the birth mother’s consent to adoption is freely given. This allows some time to recover from childbirth and conditions like post-partum depression, which might make the decision more difficult. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/Rop3QyKh90k?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Birth parents have a right to change their minds about adoption and legally this trumps the <a href="https://www.todaysparent.com/family/our-long-road-to-adoption/">grief and disappointment</a> prospective adoptive parents feel at being told the birth mother has decided to keep the baby. But in contrast, the new surrogacy proposals could make it harder for surrogate mothers who no longer want to give up their baby.</p>
<p>It seems that <a href="https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2019/06/Surrogacy-consultation-paper.pdf">very few</a> surrogates change their mind and want to keep the child. The same is true in adoption, where only a <a href="https://helpinggrowfamilies.com/can-a-birth-mother-change-her-mind-we-find-out/">small percentage</a> of women change their minds after giving birth. But their right to do so is fundamentally protected in both instances - for now. Under the proposed changes this may not still be the case. </p>
<h2>‘It’s not the same’</h2>
<p>A major difference between adoption and surrogacy is that in surrogacy, one or both of the intending parents are related to the child genetically. But it doesn’t make sense from an ethical perspective to think that this should change the legal rights of the birth mother. </p>
<p>Indeed, <a href="https://www.gov.uk/legal-rights-for-egg-and-sperm-donors#:%7E:text=Egg%20donors,when%20using%20a%20donated%20egg.">as it currently stands</a> if you give birth to a child, you’re always considered the legal mother in UK law – even when using a donated egg. The new proposals would change this blanket rule to make an exception in the case of surrogacy. </p>
<p>But if childbirth is an important enough connection to keep these default rights in the case of adoption, then why not in surrogacy? And if people who sign up to adopt a child accept the risk that a pregnant woman might change her mind about keeping the baby, why not in surrogacy?</p>
<p>Turning parenthood into a contractual agreement may seem like a common-sense fix to surrogacy dilemmas. But if surrogacy is made to be more about contracts, it might lead to risky situations with surrogates treated unfairly. And ethically, surely all birth mothers should have the same legal protection, regardless of their plans after the baby is born.</p><img src="https://counter.theconversation.com/content/202872/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Teresa Baron 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>UK surrogacy law reform: what you need to know about the proposed changes and how they could affect you.Teresa Baron, Nottingham Research Fellow in the Department of Philosophy, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag: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>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1499507718352158724"}"></div></p>
<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>
<hr>
<p>
<em>
<strong>
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>
</strong>
</em>
</p>
<hr>
<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>
<figure class="align-center ">
<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">
<figcaption>
<span class="caption">For some, surrogacy is their only option.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<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/1677602021-10-06T12:28:01Z2021-10-06T12:28:01ZBecoming a parent through surrogacy can have ethical challenges – but it is a positive experience for some<figure><img src="https://images.theconversation.com/files/424528/original/file-20211004-13-1ggnsgp.jpg?ixlib=rb-1.1.0&rect=47%2C31%2C5176%2C3554&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nurses holding babies born to Ukrainian surrogate mothers in capital city, Kyiv.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/nurses-hold-babies-as-foreign-couples-gather-to-collect-news-photo/1219071333?adppopup=true">Sergei Supinsky/ AFP via Getty Images</a></span></figcaption></figure><p><em>This article was <a href="https://theconversation.com/pope-francis-called-surrogacy-deplorable-many-women-who-become-surrogates-feel-otherwise-while-the-parents-who-choose-it-find-it-humbling-and-miraculous-220761">updated on Jan. 10 2024</a>.</em></p>
<p>In her new book, actress Gabrielle Union became the latest celebrity to <a href="https://www.harpercollins.com/products/you-got-anything-stronger-gabrielle-union?variant=39325216112674">discuss her decision</a> to become a <a href="https://time.com/6096588/gabrielle-union-surrogacy/">parent via surrogacy</a>. She joins the ranks of household names such as Neil Patrick Harris, Nicole Kidman, Kim Kardashian, all of whom have hired a surrogate to give birth to their future child. </p>
<p>The publicity Union generated about surrogacy <a href="https://www.today.com/parents/gabrielle-union-reveals-surrogacy-journey-heartbreaking-essay-t230825">reignited ethical questions</a> about this <a href="https://oneill.law.georgetown.edu/a-lack-of-consensus-around-surrogacy-regulation-at-the-national-level/">controversial</a> form of assisted reproduction that range from whether women should be able to <a href="https://doi.org/10.1017/S0963180117000445">sell their reproductive abilities</a> to what <a href="https://www.baylorpress.com/9781481310567/conceiving-family/">it means to be a parent</a>.</p>
<p>There is global disagreement about the ethics of surrogacy. Several <a href="https://surrogate.com/intended-parents/surrogacy-laws-and-legal-information/what-are-the-international-surrogacy-laws-by-country/">countries</a> have banned it, while others have limited its scope. In the United States, laws permitting surrogacy vary by <a href="https://surrogate.com/intended-parents/surrogacy-laws-and-legal-information/surrogacy-laws-by-state/">state</a>.</p>
<p>The legal range is due to ethical concerns, ranging from the potential <a href="https://doi.org/10.1111/1467-8519.00331">exploitation</a> of surrogates to worries that surrogacy <a href="https://doi.org/10.1037/a0025292">negatively affects</a> the life of the resulting child.</p>
<p>In the decade that <a href="https://www.baylorpress.com/9781481310567/conceiving-family/">I’ve been researching this form of assisted reproduction</a>, I’ve discovered that surrogacy can be exploitative, but it can also be a positive experience when undertaken with appropriate societal support and when all participants practice mutual respect, kindness and empathy. At its best, it can also encourage people to adopt a more expansive view of what it means to be a family.</p>
<h2>Myths and fears</h2>
<p>One could argue that the concept of surrogacy dates back to a biblical story in the book of <a href="https://www.biblegateway.com/passage/?search=Genesis%2016-18&version=NRSV">Genesis</a> in which Sarah, the wife of Abraham, <a href="https://www.usnews.com/news/religion/articles/2008/01/25/why-scholars-just-cant-stop-talking-about-sarah-and-hagar">pleads with him</a> to have children with the <a href="https://www.researchgate.net/publication/301577539_Hagar_the_Egyptian_Wife_Handmaid_and_Concubine">slave Hagar</a> because of Sarah’s inability to conceive. </p>
<p>Fast forward to modern times, and surrogacy is now performed predominantly in high-priced in vitro fertilization centers in one of two ways. In “traditional surrogacy,” the fertilized egg belongs to the surrogate. In “gestational surrogacy,” which is <a href="https://surrogate.com/about-surrogacy/types-of-surrogacy/what-is-traditional-surrogacy/">more common today</a>, the fertilized egg comes from either the intended mother or a donor. In both cases, that egg combines with a sperm to become an embryo that grows in the surrogate’s womb and not the intended mother’s.</p>
<p>Gestational surrogacy may be preferable because it allows intended mothers to maintain a genetic connection with their child. Others may prefer it because of fears that a surrogate could lay claim to the child <a href="https://www.americansurrogacy.com/blog/the-legal-and-emotional-risks-of-traditional-surrogacy/">with whom she had a biological connection</a>.</p>
<p>The fear that a surrogate will try to steal or adopt a child is one of many legal and ethical fears surrounding surrogacy. In the 1980s, the <a href="https://law.justia.com/cases/new-jersey/supreme-court/1988/109-n-j-396-1.html">Baby M Case</a> in the United States attracted much media attention because it tapped into these fears. In this situation, the surrogate named Mary Beth Whitehead attempted to retain custody of the baby she birthed. </p>
<p>The case fueled <a href="https://academic.oup.com/humrep/article/30/2/373/728908">a stereotype</a> of surrogates as emotionally unstable, defying the reality that surrogates undergo psychological testing before participating in a procedure.</p>
<p>Documented instances of surrogates retaining children are rare. Research shows that surrogates often experience pregnancy and birth differently than they did with their <a href="https://doi.org/10.1093/humrep/dey048">own children</a>. They also often see themselves as <a href="https://california.universitypressscholarship.com/view/10.1525/california/9780520259638.001.0001/upso-9780520259638">heroes or gift givers</a> instead of mothers. </p>
<p>If the public perceives surrogates negatively, intended parents often fare no better. They are often categorized as selfish, desperate and filthy rich, especially when they choose surrogacy without a <a href="https://www.theguardian.com/lifeandstyle/2019/may/25/having-a-child-doesnt-fit-womens-schedule-the-future-of-surrogacy">medical reason</a>.</p>
<p>Those popular images of intended parents fail to account for the reproductive trauma many of them experience prior to turning to surrogacy. Psychologists have shown that the inability to start a family can be a form of <a href="https://www.apa.org/pubs/books/4317229">reproductive trauma</a>. The decision to hire a surrogate, then, is often the last option for parents who have tried everything else. What is seen as desperation, in other words, is actually, as <a href="https://www.baylorpress.com/9781481310567/conceiving-family/">I’ve proposed in my own research</a>, an attempt to write a happy ending to the story of their reproductive lives.</p>
<h2>Ethical concerns about surrogacy</h2>
<p>It is true that this way of becoming a parent is expensive, at least in the United States, where use of the technology routinely costs <a href="https://money.usnews.com/money/personal-finance/family-finance/articles/how-much-surrogacy-costs-and-how-to-pay-for-it">over US$100,000</a>. The cost is so extreme because intended parents pay health care fees for both themselves and the surrogate, many of which aren’t covered by insurance. </p>
<p>They also have to pay legal fees, agency fees, and compensate the surrogate, which alone can range from <a href="https://www.westcoastsurrogacy.com/become-a-surrogate-mother/surrogate-mother-compensation">$45,000 to $75,000</a>. Contrast that price tag to one in India prior to its ban on international surrogacy in 2015: Couples who traveled there could expect to spend between <a href="https://www.motherjones.com/politics/2010/04/surrogacy-tourism-india-nayna-patel/">$15,000 to $20,000</a> in total for their surrogacy journey.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Actress Gabrielle Union at Will Rogers State Historic Park, in Pacific Palisades, California." src="https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/424575/original/file-20211004-12705-rfkwei.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"></a>
<figcaption>
<span class="caption">Actress Gabrielle Union has raised important questions around the ethics of surrogacy.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/gabrielle-union-attends-the-veuve-clicquot-polo-classic-at-news-photo/1344504189?adppopup=true">Frazer Harrison/Getty Images</a></span>
</figcaption>
</figure>
<p>The extreme costs of surrogacy in the U.S. limits its availability to the wealthy and to high profile <a href="https://www.harpersbazaar.com/celebrity/latest/a25747609/why-kim-kardashian-is-using-a-different-surrogate/">celebrities</a> like Union, raising important ethical questions about whether this is an appropriate use of resources, especially given the possibility of adopting. </p>
<p>In addition to ethical questions about surrogacy’s relation to wealth, feminists are divided on how surrogacy affects women. Some feminists feel that <a href="https://www.jstor.org/stable/3174860">surrogates have a right to choose what to do with their bodies</a>. Others object to surrogacy on the grounds that systemic oppression drives women into surrogacy; or that it’s unethical for women to sell their bodies, <a href="http://cup.columbia.edu/book/wombs-in-labor/9780231169905">arguing that it parallels prostitution</a>.</p>
<p>Cases documented in <a href="https://www.motherjones.com/politics/2010/04/surrogacy-tourism-india-nayna-patel/">India</a> support these concerns. Investigative journalist <a href="https://www.harpercollins.com/products/the-red-market-scott-carney?variant=32123686453282">Scott Carney</a> found one prominent Indian surrogacy clinic where surrogates were kept in crowded bedrooms on restricted diets and forced to have caesarean sections in order to streamline the labor and delivery process. </p>
<p>Scholars also worry about surrogacy’s <a href="https://www.cbc-network.org/issues/making-life/surrogacy/">impact on children</a>. Studies suggest that children of surrogates may <a href="https://doi.org/10.1093/humrep/15.9.2041">struggle with their identity</a>, especially if those children <a href="https://theconversation.com/ive-been-following-families-in-open-adoptions-for-15-years-observing-adoptive-parents-struggles-to-share-painful-origin-stories-with-kids-138672">are not told of their origins</a>. </p>
<p>Extensive research hasn’t been conducted with children of surrogates. Research by social scientists studying children born via egg and sperm donation largely mirrors the findings of adoption research: Children have questions about their identity, and answers to these questions are often most accessible when children have access to those individuals who are <a href="https://doi.org/10.1093/humrep/15.9.2041">part of their birth story</a>. Yet agencies and governments rarely regulate how surrogates, intended parents and children interact following the baby’s birth.</p>
<p>Finally, many religious groups, most prominently <a href="https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20081208_dignitas-personae_en.html">Roman Catholics</a>, object to surrogacy because it results in the destruction of human embryos during IVF cycles and violates their theological conviction that life begins at <a href="https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20081208_dignitas-personae_en.html">conception</a>. Roman Catholics encourage heterosexual couples who cannot procreate via intercourse to adopt as an alternative.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p>
<h2>The case for surrogacy</h2>
<p>Such objections might lead to the conclusion that there is never a reason to hire a surrogate. But this might be too simplistic. Even with the documented struggles on the parts of both intended parents and surrogates, many are profoundly grateful for the technology.</p>
<p>Intended parents often feel surrogates are “<a href="https://www.ucpress.edu/book/9780520259645/birthing-a-mother">gifts from God</a>” who help them reach their dream of parenthood. Meanwhile, some surrogates believe their powers of procreation provide them with a unique opportunity to help others. Many surrogates see their ability to create life as a source of power, a profound act of altruism and part of their legacy. </p>
<p>When I spoke with a group of surrogates in Austin, Texas, while conducting research for my book, I found that their stories aligned with <a href="https://www.routledge.com/Surrogate-Motherhood-Conception-In-The-Heart/Ragone/p/book/9780367289249">the findings of other researchers</a> who discovered that many surrogates had positive experiences in which they experienced themselves as <a href="https://www.ucpress.edu/book/9780520259645/birthing-a-mother">heroes</a>. These women felt empowered because they helped infertile heterosexual couples and <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6280596/">gay couples</a> create families. Without surrogacy, these individuals would have no way to have a genetic connection with their children.</p>
<p>The surrogates acknowledged that sometimes intended parents could be difficult, that pregnancy and labor could be challenging, and that it could be confusing when a checkout clerk at the grocery store asked what they were planning to name the baby.</p>
<p>Becoming a parent through surrogacy can, <a href="http://cup.columbia.edu/book/wombs-in-labor/9780231169905">as Union explains</a>, be awkward and humbling, confusing and miraculous all at the same time.</p>
<p>But when surrogates and intended parents can act freely, out of a sense of religious calling and with <a href="https://www.ucpress.edu/book/9780520259645/birthing-a-mother">the support of society</a>, then there is the potential for them to discover that family is not just biological but also social and relational. In those encounters, many experience the technology as life-giving, both metaphorically and literally.</p>
<p>
<section class="inline-content">
<img src="https://images.theconversation.com/files/338598/original/file-20200529-78871-1g5gse5.jpg?w=128&h=128">
<div>
<header></header>
<p><a href="https://www.ats.edu/">The Candler School of Theology at Emory University is a member of the Association of Theological Schools.</a></p>
<footer>The ATS is a funding partner of The Conversation US.</footer>
</div>
</section>
</p><img src="https://counter.theconversation.com/content/167760/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danielle Tumminio Hansen 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>Surrogacy can be exploitative, but a theologian writes how it can also remind individuals that family is not just biological but also social and relational.Danielle Tumminio Hansen, Assistant Professor of Practical Theology & Spiritual Care, Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1667452021-09-09T02:01:14Z2021-09-09T02:01:14ZWho are my parents? Why New Zealand’s ‘creaky’ surrogacy laws are overdue for major reform<figure><img src="https://images.theconversation.com/files/419926/original/file-20210908-7579-17e7s1a.jpg?ixlib=rb-1.1.0&rect=19%2C0%2C4341%2C2903&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>Children born through surrogacy are much wanted and much loved. Under the current law, however, they can spend at least their first months of life in a kind of legal limbo. </p>
<p>This is because of the way several separate pieces of legislation cover the two types of surrogacy: gestational, where the child is not genetically related to the surrogate parent; and traditional, where the child is genetically related. </p>
<p>The resulting legal confusion is now the subject of a <a href="https://www.lawcom.govt.nz/our-projects/review-of-surrogacy">Law Commission review</a>, which proposes significant reform based on the guiding principle that “the best interests of the child should be paramount”.</p>
<p>Right now, that cannot be said of the way surrogate children and their parents are treated under law that even judges have described as “creaky” and “inadequate”.</p>
<h2>Who are the legal parents?</h2>
<p>Surrogacy is regulated through the <a href="https://www.legislation.govt.nz/act/public/2004/0092/latest/whole.html">Human Assisted Reproductive Technology Act</a>, which prohibits <a href="https://www.canterbury.ac.nz/law/research/cccl/publications/books/perspectives-on-commercial-surrogacy-in-new-zealand-ethics-law-policy-and-rights.html">commercial surrogacy</a> and requires gestational surrogacy to be approved by an <a href="https://ecart.health.govt.nz/">ethics committee</a>. </p>
<p>But that act is silent on the legal parentage of the child, leaving this to be determined by the <a href="https://www.legislation.govt.nz/act/public/1969/0018/latest/whole.html">Status of Children Act</a>. Effectively, the woman who gives birth and her partner (if the partner consents to the assisted reproduction) are the child’s legal parents. </p>
<p>This means the intended parents have no legal rights to the child – even if they are the genetic parents – until they adopt the child under the <a href="https://www.legislation.govt.nz/act/public/1955/0093/latest/DLM292661.html">Adoption Act</a>. </p>
<p>But legal parentage is important. Legal parents transfer citizenship to their children and act on their behalf, such as giving consent to medical treatment or travel.</p>
<figure class="align-center ">
<img alt="Newborn baby in mothers arms" src="https://images.theconversation.com/files/419929/original/file-20210908-27-fk804e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419929/original/file-20210908-27-fk804e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419929/original/file-20210908-27-fk804e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419929/original/file-20210908-27-fk804e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419929/original/file-20210908-27-fk804e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419929/original/file-20210908-27-fk804e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419929/original/file-20210908-27-fk804e.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">Uncertainty about legal parentage affects everyone involved, including the child.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>Costly, burdensome and time-consuming</h2>
<p>All children, independently of their method of birth, have the right to an identity, citizenship, health, education and to be cared for by their parents. However, the uncertainty regarding the legal parentage of surrogate-born children compromises those rights and the ability of intended parents to take care of their children. </p>
<p>The best interests of the child are not served by imposing on intended parents the duty to adopt their children from surrogate parents who never meant to be the legal parents or raise the children. </p>
<p>In particular, when one or both intended parents are the child’s biological parents, adoption distorts the child’s identity forever, engendering an unnecessary legal fiction.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/when-women-are-surrogate-mothers-is-that-work-81381">When women are surrogate mothers: Is that work?</a>
</strong>
</em>
</p>
<hr>
<p>This is confusing for <a href="https://www.parliament.nz/en/pb/petitions/document/PET_91537/petition-of-christian-john-newman-update-the-adoption">intended parents</a>, <a href="https://www.canterbury.ac.nz/media/documents/business-and-law/law-documents/EmpiricaResearchFinalPart1.pdf">lawyers</a> and <a href="https://www.canterbury.ac.nz/media/documents/business-and-law/law-documents/EmpiricaResearchFinalPart3.pdf">members of the public</a>, particularly where the child is genetically related to the intended parents. </p>
<p>Furthermore, the adoption process is seen as costly, burdensome and time-consuming because <a href="https://www.canterbury.ac.nz/media/documents/business-and-law/law-documents/EmpiricaResearchFinalPart2.pdf">lawyers and judges</a> are involved. It can take months to get a hearing. </p>
<p>It can also be invasive because Oranga Tamariki has to write reports on the suitability of the parents for parenthood. </p>
<p>For those engaging in international surrogacy, there are further problems. Oranga Tamariki needs to see the child in their new home to write the report for adoption, but the child cannot travel to New Zealand with adults who are not the legal parents without additional red tape (involving both countries granting discretionary visas).</p>
<figure class="align-center ">
<img alt="Tamati Coffey in parliament" src="https://images.theconversation.com/files/419931/original/file-20210908-25-1ay70l0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419931/original/file-20210908-25-1ay70l0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419931/original/file-20210908-25-1ay70l0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419931/original/file-20210908-25-1ay70l0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419931/original/file-20210908-25-1ay70l0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419931/original/file-20210908-25-1ay70l0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419931/original/file-20210908-25-1ay70l0.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">Labour MP Tamati Coffey’s members’ bill has not yet been drawn from the parliamentary ballot.</span>
<span class="attribution"><span class="source">GettyImages</span></span>
</figcaption>
</figure>
<h2>When is parentage transferred?</h2>
<p>While the <a href="https://www.lawcom.gov.uk/project/surrogacy/">UK</a> and <a href="https://www.alrc.gov.au/publication/review-of-the-family-law-system-issues-paper-ip-48/issues-paper-5/legal-principles-in-relation-to-parenting-and-property-2/">Australia</a> have considered updating their laws to meet the increasing demand for surrogacy, New Zealand has failed to revisit this important law until now. </p>
<p>Two members’ bills by <a href="http://adoptionaction.co.nz/wp-content/uploads/2018/08/2015-06-23-Care-of-Children-Adoption-and-Surrogacy-Law-Reform-Amendment-Bill_v1.pdf">Kevin Hague</a> in 2018 and <a href="https://www.parliament.nz/en/pb/bills-and-laws/proposed-members-bills/improving-arrangements-for-surrogacy-bill-tamati-coffey/">Tamati Coffey</a> in 2019 were never drawn from the parliamentary ballot. Coffey’s bill was re-entered into the ballot in 2021 but has not yet been drawn.</p>
<p>So the Law Commission review is both welcome and overdue. In particular, the complex decisions around legal parenthood in a surrogacy relationship need careful attention.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/commercial-surrogacy-lifting-legal-restrictions-is-the-moral-thing-to-do-to-help-people-trying-to-have-babies-108999">Commercial surrogacy: lifting legal restrictions is the moral thing to do to help people trying to have babies</a>
</strong>
</em>
</p>
<hr>
<p>Current law states that egg or sperm donors are not legal parents. This leaves four potential legal parents: the surrogate, her partner and the intended parent or parents. </p>
<p>While a simple approach might be to designate the intended parents as the legal parents, it is crucial the surrogate has the right to make all medical decisions during the pregnancy, including abortion if necessary. </p>
<p>Legal parentage must therefore be transferred to the intended parents after the birth to respect the rights of the surrogate. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/making-commercial-surrogacy-illegal-only-makes-aspiring-parents-go-elsewhere-54382">Making commercial surrogacy illegal only makes aspiring parents go elsewhere</a>
</strong>
</em>
</p>
<hr>
<h2>Greater certainty for families</h2>
<p>This crucial process raises complicated questions of when and how this transfer happens, including whether time is allowed for the surrogate to change her mind. </p>
<p>The Law Commission proposes a “dual pathway” reform. The first provides that transfer of parentage should occur through a simple administrative process, provided the ethics committee has approved the surrogacy and the surrogate confirms her consent after birth to the transfer of parentage. </p>
<p>For more complicated cases, the Family Court would be able to make a post-birth order (which differs from an adoption order).</p>
<p>By giving due consideration to all these ethical issues, the Law Commission’s proposals appear to reconcile the interests of all parties, giving greater legal certainty to families while making babies’ lives a little easier.</p>
<hr>
<p><em>The Law Commission is seeking <a href="https://surrogacy-consultation.lawcom.govt.nz/">submissions</a> on its proposals until September 23.</em></p><img src="https://counter.theconversation.com/content/166745/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Debra Wilson received funding from the New Zealand Law Foundation to research legal issues relating to surrogacy.
She is a member of the Expert Advisory Group for the Law Commission Surrogacy Project</span></em></p><p class="fine-print"><em><span>Annick Masselot received funding from the New Zealand Law Foundation to research legal issues relating to surrogacy.</span></em></p><p class="fine-print"><em><span>Martha Ceballos receives funding from the New Zealand Law Foundation to research legal issues relating to surrogacy.</span></em></p>Judges have described New Zealand’s surrogacy parentage laws as ‘creaky’ and ‘inadequate’. The Law Commission has finally proposed significant reform.Debra Wilson, Associate Professor, School of Law, University of CanterburyAnnick Masselot, Professor of Law, University of CanterburyMartha Ceballos, Researcher, School of Law, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1419872020-08-13T01:27:33Z2020-08-13T01:27:33Z‘We are taboo everywhere’: how LGBTIQ+ people, and their children, become stateless<figure><img src="https://images.theconversation.com/files/351522/original/file-20200806-22-yyhj4d.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">Bruno Domingos/Reuters</span></span></figcaption></figure><blockquote>
<p>No child should be denied her rights because her parents are LGBTIQ+, and no family should have to endure the indignity we did. </p>
</blockquote>
<p>These are the <a href="https://www.lambdalegal.org/blog/20200617_victory-fed-court-orders-state-recognize-citizenship">words</a> of Roee and Adiel Kiviti, a same-sex married couple who recently won a legal challenge against the US Department of State for refusing to consider their daughter an American citizen. </p>
<p>Both men are US citizens, but their daughter was born in Canada through surrogacy. The State Department <a href="https://abovethelaw.com/2020/06/us-government-goes-all-in-to-deny-citizenship-to-children-born-of-lgbtq-couples/">considers</a> such children of same-sex couples to be “born out of wedlock”, irrespective of the marital status of the parents. For the Kivitis, this meant their daughter was denied the automatic citizenship normally granted to the children of US citizens.</p>
<p>This isn’t just a singular case. For many children born to same-sex couples through international surrogacy, there is a risk they could become stateless — unable to gain citizenship in the country where they were born, or their parents’ home countries.</p>
<p>Immigration Equality, an LGBTIQ+ immigrant rights organisation in the US, <a href="https://www.thedailybeast.com/state-department-continues-fight-to-strip-gay-couples-two-year-old-son-of-birthright-citizenship">says</a> there is a </p>
<blockquote>
<p>new double standard for citizenship: one for the children of gay couples and one for the children of straight couples.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1172162843887714304"}"></div></p>
<h2>What does statelessness mean?</h2>
<p>Statelessness is defined under <a href="https://www.unhcr.org/uk/un-conventions-on-statelessness.html">international law</a> as not being recognised as a citizen by any of the world’s 195 recognised states. According to the UN’s <a href="https://news.un.org/en/story/2018/11/1025561#:%7E:text=The%20very%20nature%20of%20statelessness,could%20be%20three%20times%20higher.">conservative estimate</a>, there are some 12 million stateless people globally. </p>
<p>In practical terms, stateless people face many challenges due to their lack of citizenship. While these differ significantly from one context to the next, common experiences include the inability to access vital services (such as education and health care), move freely, own property and simply prove one’s identity.</p>
<p>Cases like the Kivitis’ daughter have brought high-profile attention to the risk of statelessness associated with LGBTIQ+ parenting situations. </p>
<p>Similar <a href="http://nelfa.org/inprogress/wp-content/uploads/2020/01/NELFA-AllOut-presentationSHOURTCUT.pdf">cases</a> have been compiled by campaigners in Europe, where litigation is also underway. </p>
<p>An Irish-Polish lesbian couple, for instance, gave birth to a daughter through IVF in Spain in 2018. The girl, Sofia, is currently <a href="https://babysofia.info">stateless</a> because neither woman’s country will recognise her right to citizenship. Her Spanish citizenship is still pending. </p>
<p>And before international commercial surrogacy arrangements were banned in India and Thailand, the children of <a href="https://www.abc.net.au/news/2013-03-05/surrogacy-laws-could-%20leave-australian-babies-stateless/4552460">many</a> <a href="https://www.haaretz.com/.premium-thai-israeli-surrogacy-deal-emerging-1.5314378">same-sex couples</a> born in these countries were at risk of statelessness. </p>
<p>However, statelessness is also a problem that LGBTIQ+ people themselves may face. My <a href="https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/133/63">recently published research</a> has identified scores of stateless LGBTIQ+ people around the world. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-year-since-the-marriage-equality-vote-much-has-been-gained-and-there-is-still-much-to-be-done-106326">A year since the marriage equality vote, much has been gained – and there is still much to be done</a>
</strong>
</em>
</p>
<hr>
<h2>Stateless LGBTIQ+ people face double marginalisation</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1339&fit=crop&dpr=1 600w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1339&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1339&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1683&fit=crop&dpr=1 754w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1683&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/351913/original/file-20200810-14-1lhzke4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1683&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Eliana Rubashkyn.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<p>Why do we hear so little about their experiences? Indeed, this was the question that motivated me to <a href="https://ilga.org/downloads/SOGIESC_at_UPR_report.pdf">study the links</a> between statelessness and sexual orientation, gender identity and expression, and sex characteristics (relating to a person’s physical sexual anatomy). </p>
<p>Having worked on statelessness for the last decade, I have attended many conferences with little consideration given to LGBTIQ+ people. In contrast, <a href="http://www.sogica.org/en/">much research</a> has been conducted on the experiences of LGBTIQ+ refugees and asylum seekers. </p>
<p>As Eliana Rubashkyn, an intersex person from Colombia who experienced years of statelessness before receiving asylum and citizenship in New Zealand, explained to me: </p>
<blockquote>
<p>Nobody talks about our case because we are taboo everywhere. Yet it is a chronic violation of human rights.</p>
</blockquote>
<p>My research highlights that stateless LGBTIQ+ people often face a significant double marginalisation. They are discriminated because of their sexuality or gender expression, as well as their lack of documentation. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-does-an-asylum-seeker-have-to-do-to-prove-their-sexuality-38407">What does an asylum seeker have to do to prove their sexuality?</a>
</strong>
</em>
</p>
<hr>
<p>For example, one stateless queer man in Lebanon described fears of being arrested on grounds of public immorality (a common charge against the LGBTIQ+ community) and lacking the necessary paperwork to establish his identity. While he is not the only stateless person in his family (due to gender discrimination in Lebanese citizenship law), the risks are compounded in his case.</p>
<blockquote>
<p>It goes without saying that being stateless can also make any problem I encounter due to my sexual orientation and gender identity much worse. And vice versa.</p>
</blockquote>
<p>While no statistics are available, for some LGBTIQ+ people, discrimination is what caused them to become stateless in the first place. </p>
<p>They can lose their citizenship due to complex laws that do not recognise LGBTIQ+ marriages and relationships across countries. There is also a patchwork of different laws recognising sex and gender transitions, which can be especially problematic for trans and intersex individuals.</p>
<p>This was the case for Rubashkyn, who no longer resembled her passport photo following hormone treatment and became <a href="https://edition.cnn.com/2014/09/05/world/transgender-asylum-hong-kong/">stranded</a> in Hong Kong’s airport six years ago. </p>
<p>Desperate to prevent officials from deporting her back to Colombia, where she had suffered persecution, she ultimately renounced her Colombian citizenship, making herself stateless. She was <a href="https://www.newshub.co.nz/home/shows/2018/04/raped-and-beaten-for-her-gender-identity-refugee-s-story-of-survival.html">later resettled</a> in New Zealand and gained citizenship in 2018. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1233258778264391680"}"></div></p>
<h2>Asylum requests are often denied</h2>
<p>Within asylum contexts, research shows both <a href="https://statelessjourneys.org/wp-content/uploads/StatelessJourneys-Addressing_statelessness_in_Europ_refugee_response-FINAL.pdf">statelessness</a> and <a href="https://uklgig.org.uk/wp-content/uploads/2014/02/Missing-the-Mark.pdf">LGBTIQ+</a> situations are often missed or misunderstood during the process of assessing claims for protection. </p>
<p>For instance, one transsexual interviewee from my research explained </p>
<blockquote>
<p>the various intersecting elements of my narrative seemed to confuse the asylum officials who wanted to understand my experience through a singular lens. I tried to explain but they did not appear convinced. </p>
</blockquote>
<p>The lack of attention paid to “rainbow statelessness” in the media and policy debates may further lead governments to question the credibility of statements made by stateless LGBTIQ+ asylum seekers. </p>
<p>This is why it’s critical to bring more attention to the links between statelessness and sexual orientation or gender identity. </p>
<p>Better understanding this intersection is necessary to improve laws and policies that discriminate against LGBTIQ+ people, and sometimes render them, or their children, stateless. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/so-much-for-dutch-tolerance-life-as-an-lgbt-asylum-seeker-in-the-netherlands-80332">So much for Dutch tolerance: life as an LGBT asylum seeker in the Netherlands</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/141987/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas McGee 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>New research explores the little-understood problem facing many LGBTIQ+ people — the loss of citizenship due to discriminatory laws and difficulties claiming asylum.Thomas McGee, PhD researcher, Peter McMullin Centre on Statelessness, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1393142020-07-21T14:32:41Z2020-07-21T14:32:41ZNew technologies mean states must reconsider what ‘reproductive rights’ are<figure><img src="https://images.theconversation.com/files/346022/original/file-20200707-194405-1hl9dcx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New technologies are helping people to choose when and how to have children.</span> <span class="attribution"><span class="source">MidoSemSem/Shutterstock</span></span></figcaption></figure><p>A number of technological advances have revolutionised human reproduction in the past few decades. One example is in vitro fertilisation (IVF), the process of fertilising a woman’s eggs with a man’s sperm in the laboratory. This can be a solution when men and women have problems conceiving. It also allows infertile couples to use donor sperm or eggs. </p>
<p>Other examples include embryo transfer and pre-implantation genetic testing. The first means embryos created outside the body can be frozen, stored and later transferred into a womb. The second allows prospective parents who have or carry genetic diseases to run genetic tests on their stored embryo. Such technologies are often strictly regulated because of ethical misgivings about their use. </p>
<p>Some countries <a href="https://academic.oup.com/hropen/article/2020/1/hoz044/5715201#198801773">do not permit pre-implantation genetic testing at all</a>. Many others, among them Australia, Belgium, Canada, France, Germany, Italy, the Netherlands, Spain, Switzerland and the UK, do not permit it for the purpose of <a href="https://cbhd.org/content/g12-country-regulations-assisted-reproductive-technologies">choosing the baby’s sex</a>. </p>
<p>Some people view such technologies as against the “natural order”, or are concerned about the “commodification” of human life. But for others, laws based on these views limit their freedom to choose to use reproductive technologies as they wish. </p>
<p>I set out <a href="https://www.tandfonline.com/eprint/2AFINJTU359GRIEUVIBW/full?target=10.1080/02587203.2020.1776632">to examine</a> whether the limitations are justified from a legal perspective, in light of the rich history that freedom of choice has in international human rights.</p>
<p><a href="https://www.tandfonline.com/eprint/2AFINJTU359GRIEUVIBW/full?target=10.1080/02587203.2020.1776632">I did this</a> by studying the history of reproductive rights. These are a fixture in international human rights documents, including the <a href="https://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a>. They are also enshrined in the laws of liberal democracies like South Africa, the US and Canada. I concluded that reproductive rights are based on the fundamental freedom of individuals to found a family, regardless of how they do so. They are entitled to use new reproductive technologies to create a family. Their rights should not be limited by moral indignation.</p>
<p>The issue has received little attention so far. But it will likely become increasingly relevant as new reproductive technologies like <a href="https://theconversation.com/what-is-crispr-gene-editing-and-how-does-it-work-84591">CRISPR</a> heritable genome editing expand the choices prospective parents may make. It is also very likely that legal challenges will be raised by individuals who stand to benefit from using these technologies. That’s why a deeper understanding of the history, meaning and future of reproductive rights is so important. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-is-crispr-gene-editing-and-how-does-it-work-84591">What is CRISPR gene editing, and how does it work?</a>
</strong>
</em>
</p>
<hr>
<h2>Where do reproductive rights come from?</h2>
<p>The <a href="https://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a>, which was proclaimed in 1948, was the first international instrument agreement on the fundamental and inalienable rights of all humans. It does not refer directly to reproductive rights. However, its <a href="https://www.humanrights.com/course/lesson/articles-12-18/read-article-16.html">Article 16</a> does speak to the freedom of individuals to found a family with a partner of their choice.</p>
<p>In the years following the declaration, the world experienced <a href="https://www.jstor.org/stable/1965194?seq=1">accelerated growth</a> in population, leading to concerns about socio-economic development.</p>
<p>As a result, some states took drastic measures to control population numbers. One example was China’s <a href="https://theconversation.com/as-china-ends-the-one-child-policy-what-is-its-legacy-49975">“One-Child Policy”</a>. The international community viewed such policies as a violation of fundamental human rights. It resolved that state population control policies should be guided by <a href="https://undocs.org/pdf?symbol=en/a/res/2211(XXI)">the principle</a> that</p>
<blockquote>
<p>the size of the family should be the free choice of each individual family.</p>
</blockquote>
<p>The next distinct phase in developing reproductive rights began in 1975 with the United Nations’ first <a href="https://www.unwomen.org/en/how-we-work/intergovernmental-support/world-conferences-on-women#mexico">World Conference on Women</a>. From this point, reproductive rights became a tool to overcome obstacles faced by women. In particular, they were used to promote safe termination of unwanted pregnancies.</p>
<h2>The shifting future</h2>
<p>Reproductive rights have always focused on protecting the autonomy of individuals in determining whether, when and how to have children.</p>
<p>If they are to continue to accomplish this, individual states must acknowledge that reproductive rights are more than just the right not to have the government dictate what women can and cannot do with their bodies.</p>
<p>Unfortunately they have often failed to do so. For instance, the Constitutional Court of South Africa in the case of <a href="http://www.saflii.org/za/cases/ZACC/2016/43.html">AB v Minister of Social Development</a> ruled that the right to make decisions concerning reproduction only applies to the use of one’s own body. Though surrogacy is legal in South Africa, it is limited to people who can use their own eggs and sperm. In this case, the court did not allow a surrogate pregnancy using another woman’s eggs.</p>
<p>The law both in South Africa and elsewhere on the continent may need to be re-examined to keep up with technological developments – and with people’s interest in accessing these to have children when and how they choose. Evidence shows demand for these services is high, and steadily increasing. The most recent statistics by the <a href="http://anara-africa.com/#:%7E:text=Assisted%20Reproductive%20Technology.-,The%20African%20Network%20and%20Registry%20for%20Assisted%20Reproductive%20Technology%20brings,reproductive%20technology%20on%20the%20continent">African Network and Registry for Assisted Reproductive Technology</a>, for instance, showed 4,368 attempts at assisted reproduction in South Africa. </p>
<p>Adopting more permissive laws, partnered with <a href="https://health-e.org.za/2019/10/28/ten-years-later-the-nhi-must-prioritise-sexual-and-reproductive-health/">prioritising sexual and reproductive</a> health within national healthcare insurance schemes, would bring countries like South Africa in line with other liberal democracies on the issue of reproductive rights and technologies. </p>
<h2>Rethinking rights</h2>
<p>Reproductive rights have historically recognised that individuals should be free to make choices relating to reproduction. States should be mindful of this when regulating new reproductive technologies. </p>
<p>In countries like South Africa, the right to reproductive autonomy, and to access reproductive healthcare, turns on whether one chooses to have a child the “good old fashioned way”. This unfairly discriminates against those whose only hope at forming a family is through non-traditional means.</p><img src="https://counter.theconversation.com/content/139314/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bonginkosi Shozi receives funding from the National Research Foundation, and the University of KwaZulu-Natal's African Health Research Flagship.. </span></em></p>As more choices become theoretically available to prospective parents, it’s important to understand their rights.Bonginkosi Shozi, Doctoral Fellow with the UKZN African Health Research Flagship, University of KwaZulu-NatalLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1235362019-09-24T16:33:51Z2019-09-24T16:33:51ZHow economics can help save lives: a conversation with Alvin Roth, 2012 Nobel Prize laureate<figure><img src="https://images.theconversation.com/files/293871/original/file-20190924-51410-ah35m2.jpg?ixlib=rb-1.1.0&rect=0%2C22%2C1500%2C974&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Alvin Roth exposes his work on "disgusting markets" at the European Meeting of the ESA (Economic Science Association) on 7 September in Dijon, France.</span> <span class="attribution"><a class="source" href="https://www.facebook.com/LESSACDijon/?__tn__=%2Cd%2CP-R&eid=ARBngSpMZimJYuZtJRtmF-Wpb0kA7jAHmrNQ5XvT3cL7BZbQfJGp2-zoJ2KhfStcwFF8cE-s6MM7xBaf">Lessac/BSB</a>, <span class="license">Author provided</span></span></figcaption></figure><p><em>The work of American economist Alvin Roth is a direct response to those who believe that economics is more about mathematics than the real world. A professor at Stanford, he built his reputation by applying economic theory to concrete, everyday problems. A winner of the 2012 Nobel Prize with Lloyd Shapley, Roth has dedicated much of his research to what are known as “repugnant” markets – transactions that “some people would like to engage in while others, even if not directly affected, think they should not be allowed to do so”. One example is selling vital organs for transplant purposes, which is considered repugnant everywhere (or almost) in the world. However, Roth has studied issues related to the supply and demand for organs and has developed a model that allows matching between kidney donors and recipients. In a nutshell, his work has helped increase the number of kidney transplants and thus saved lives.</em></p>
<p><em>The Conversation France met this eminent specialist in experimental economics in Dijon, during his visit at the European Meeting of the Economic Science Association (ESA), organized on September 7, 2019, by the <a href="https://lessac.bsb-education.com/index.php">Laboratory for Experimentation in Social Sciences and Behavioural Analysis</a> (Lessac) of Burgundy School of Business (BSB).</em></p>
<hr>
<p><strong>The Conversation: How would you define a “repugnant” market?</strong></p>
<p>Alvin Roth: I can’t give a perfect definition, but when I speak about repugnant transactions, I think about transactions that some people would like to take part in and other people who are not directly affected by these transactions think they should not be allowed to. A repugnant market is a market of repugnant transactions.</p>
<p><strong>Could you give us a few examples?</strong></p>
<p>One example that I spoke about today was same-sex marriage. Two people would like to marry each other but other people think they maybe shouldn’t be allowed to. This has been a divisive political issue in Europe and in the United States, and different countries and states have reached different conclusions about it. (Currently, constitutional or statutory provisions prohibiting same-sex marriage exist in 13 US states, while it’s legal in the others).</p>
<p><strong>You conception of the matching system to multiply transplantations. The purpose is to build a kidney-exchange chain. How does it works? And how does it cope with the repugnance factor?</strong></p>
<p>Transplantation is not repugnant at all. Transplantation saves the life of someone who has kidney failure, for example, and I don’t think many people object to that. What’s repugnant is <em>purchasing</em> the kidney. Kidneys are special: people have two kidneys and can remain healthy with one, so you might be able to save the live of someone you love by giving them a kidney. But the law requires that these be gifts, not sales. Just about everywhere in the world that’s the law, with the exception of the Islamic Republic of Iran. As a result, there’s a shortage of organs for transplants. Many people die without getting a transplant because there aren’t enough organs for the people who need them, living donor organs included. Sometimes, you might love someone enough to give him a kidney but you can’t give a kidney to the person you love, because kidneys have to be very well-matched. Kidney exchange is a way of getting some transplants done, even when patients and their donors are not well matched.</p>
<p>Maybe you want to give a kidney to your sister and I want to give a kidney to my sister, but neither of us can do that because we’re not good matches for them. But maybe your sister could take my kidney and my sister could take your kidney and that way we get two more transplants and two lives saved. That’s the basic idea of kidney exchange.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=248&fit=crop&dpr=1 600w, https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=248&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=248&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=312&fit=crop&dpr=1 754w, https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=312&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/292394/original/file-20190913-8693-17ngrw7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=312&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Kidney chain from Alvin Roth’s presentation ‘Improved markets for doctors, organ transplants and school choice’.</span>
<span class="attribution"><a class="source" href="http://stanford.edu/~alroth/Congressional%20Briefing.BetterLiving.March2010.pdf">Stanford.edu</a></span>
</figcaption>
</figure>
<p><strong>How can your work on transplantations be useful on understanding other repugnant markets?</strong></p>
<p>Partly the question with kidney exchange was to understand what was repugnant and how we could move forward to the larger goal without offending. In a kidney exchange, no one is paid. No one gets money, it’s a kidney for a kidney, and that turns out not to be repugnant. In the United States we were able to get the federal law changed to make clear that kidney exchange is not repugnant. The reasons that some people don’t like certain transactions can be different from the reasons other people want to engage in those transactions.</p>
<p><strong>What are the ways around this repugnance? Are they necessarily to be found in regulation and law?</strong></p>
<p>Just as markets need social support to work well, so do bans on markets. So making laws against markets doesn’t always make them go away, as we learn in the markets for illegal drugs or for prostitution, for example. Different countries and states in the US have different laws about those things. Another market I’ve talked about where there are different rules in different places are markets for things like parental surrogacy. In France, it’s illegal. In California, where I live, it’s legal. Making it illegal in France, however, has not stopped French couples who need a surrogate from getting them. Then you have to deal with how should the law treat the children who should have French citizenship and French parents and might possibly have no citizenship and no parents if the French law is applied too strictly (The French courts have softened the restrictions of the French law in such cases) ! Markets may be both hard to create, and hard to prevent.</p>
<p><strong>How can the study of repugnant markets help regular legal markets?</strong></p>
<p>Technology changes all markets and the opportunities of people in markets. For instance surrogacy was only possible after the invention of <em>in vitro</em> fertilization. This is true in other markets too. We now see financial markets where most of the trades are done by computers. That has changed the nature of the market and sometimes it changes the nature of rules that markets need to run well. I think that markets are a little bit like living organisms. We have to see how they evolve. When we think about how to make them work well, how markets should serve the participants and society, we sometimes have to change the rules by which they work.</p><img src="https://counter.theconversation.com/content/123536/count.gif" alt="The Conversation" width="1" height="1" />
Stanford professor’s research has led to an increase in the number of kidney transplants in the United States.Leighton Kille, Rédacteur en chef, coordination internationale et technique, The Conversation FranceThibault Lieurade, Chef de rubrique Economie + Entreprise, The Conversation FranceLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1091402019-01-29T19:11:35Z2019-01-29T19:11:35ZSperm donation is testing what it means to be a legal parent, all the way to the High Court<figure><img src="https://images.theconversation.com/files/256019/original/file-20190129-42594-1fps110.jpg?ixlib=rb-1.1.0&rect=0%2C4%2C1000%2C661&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We need a new legal definition of 'parent' to reflect the diversity of Australian families.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/lesbians-mothers-adopted-child-happy-homosexual-568376338">from www.shutterstock.com</a></span></figcaption></figure><p>The family courts have historically treated legal parentage as a question of who has “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1999/446.html?context=1;query=tobin;mask_path=au/cases/cth/FamCA+au/cases/cth/FamCAFC+au/legis/cth/consol_act+au/legis/cth/num_act+au/legis/cth/repealed_act+au/legis/cth/consol_reg+au/legis/cth/num_reg+au/legis/cth/num_reg_es+au/legis/cth/repealed_reg+au/legis/cth/bill+au/legis/cth/bill_em+au/legis/cth/digest+au/legis/cth/table+au/other/HCAASP+au/other/hca/bulletin+au/other/HCASum+au/cases/cth/HCASL+au/cases/cth/HCATrans+au/other/AUOmbIRp+au/other/rulings/ato/ATOCR+au/other/rulings/ato/ATOER+au/other/rulings/ato/ATOFTD+au/other/rulings/ato/ATOFTR+au/other/rulings/ato/ATOGSTA+au/other/rulings/ato/ATOGSTB+au/other/rulings/ato/ATOGSTD+au/other/rulings/ato/ATOGSTR+au/other/rulings/ato/ATOLCTD+au/other/rulings/ato/ATOMTR+au/other/rulings/ato/ATOMTROS+au/other/rulings/ato/ATOPGBR+au/other/rulings/ato/ATOPR+au/other/rulings/ato/ATOPRP+au/other/rulings/ato/ATOSTRNS+au/other/rulings/ato/ATOSTR+au/other/rulings/ato/ATOSTD+au/other/rulings/ato/ATOSMSFD+au/other/rulings/ato/ATOSMSFR+au/other/rulings/ato/ATOSMSFPR+au/other/rulings/ato/ATOSCD+au/other/rulings/ato/ATOSCR+au/other/rulings/ato/ATOSD+au/other/rulings/ato/ATOSGD+au/other/rulings/ato/ATOSGR+au/other/rulings/ato/ATOTD+au/other/rulings/ato/ATOTR+au/other/rulings/ato/ATOITR+au/other/rulings/ato/ATOTGD+au/other/rulings/ato/ATOTGR+au/other/rulings/ato/ATOWETD+au/other/rulings/ato/ATOWETR+au/other/rulings/ato/ATODER+au/other/rulings/ato/ATODFTR+au/other/rulings/ato/ATODGSTD+au/other/rulings/ato/ATODGSTR+au/other/rulings/ato/ATODLCTD+au/other/rulings/ato/ATODMTR+au/other/rulings/ato/ATODMTROS+au/other/rulings/ato/ATODPGBR+au/other/rulings/ato/ATODSTD+au/other/rulings/ato/ATODSTRNS+au/other/rulings/ato/ATODSMSFR+au/other/rulings/ato/ATODSMSFD+au/other/rulings/ato/ATODSCD+au/other/rulings/ato/ATODSCR+au/other/rulings/ato/ATODSD+au/other/rulings/ato/ATODSGD+au/other/rulings/ato/ATODSGR+au/other/rulings/ato/ATODTD+au/other/rulings/ato/ATODTR+au/other/rulings/ato/ATODTGD+au/other/rulings/ato/ATODWETD+au/other/rulings/">begotten or borne</a>” a child. But increasingly complex family situations created as a result of donor conception, surrogacy, IVF and DNA testing are sorely testing this biblical-sounding definition. </p>
<p>In 2019, the Australian High Court will be hearing the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2018/265.html">appeal</a> concerning the legal parentage of a child born via sperm donation. This is a crucial opportunity for the court to reconsider the “begotten or borne” definition, and the emphasis currently placed on biology and how someone was conceived.</p>
<p>Some time this year, the High Court will be telling an 11-year-old girl (let’s call her Billie) who her legal parents are. By the age of 11, most of us have a pretty clear picture of who our parents are, and chances are, Billie does too. She and her younger sister live most of the time with their two mums (Susan and Margaret Parsons), and have regular time with their dad (Robert Masson) and his partner Greg.*</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/mum-dad-and-two-kids-no-longer-the-norm-in-the-changing-australian-family-88014">Mum, dad and two kids no longer the norm in the changing Australian family</a>
</strong>
</em>
</p>
<hr>
<h2>Why is this case significant?</h2>
<p>Billie’s family is in the High Court because her mums want to re-locate to New Zealand, and her dad objects. Whether the Parsons family should be allowed to relocate is a parenting order decision, in which the best interests of Billie and her little sister must, under the Family Law Act, be paramount. </p>
<p>But because Australian family law puts a big emphasis on “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60cc.html">the benefit to the child of a meaningful relationship with both parents</a>” when deciding the best interests of the child, whether Robert is considered Billie’s legal parent will influence the outcome. </p>
<p>Billie’s case is significant because at its heart is a curly question: what does it mean to be a legal parent? Pull at this thread, and it unravels many other questions. What counts when judges are deciding a child’s legal parentage? Should the court consider the circumstances of the child’s conception, birth and genetic relatedness? Are the intentions of the people who helped bring the child into the world relevant? What about whether they have functioned as the child’s parents so far? And is the child’s perspective relevant?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/connecting-diblings-how-the-law-is-failing-to-keep-up-with-modern-families-85749">Connecting 'diblings': how the law is failing to keep up with modern families</a>
</strong>
</em>
</p>
<hr>
<p>Family law has struggled to keep up with developments in assisted reproduction, paternity testing and the increasing diversity of Australian families. Parentage issues arise not just as a result of assisted conception, such as in cases donor conception or surrogacy. Issues also arise when children are raised by a non-genetic parent for cultural reasons (such as in some Aboriginal or Torres Strait Islander families), or where a man has been raising a child who he later discovers is not his biological offspring.</p>
<h2>Why is Australian parentage law so messy?</h2>
<p>Australian parentage law is particularly complex because of uncertainty surrounding the way the federal Family Law Act interacts with state or territory laws. </p>
<p>There is, as <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2018/115.html?context=0;query=masson;mask_path=au/cases/cth/FamCAFC+au/legis/cth/consol_act+au/legis/cth/num_act+au/legis/cth/repealed_act+au/legis/cth/consol_reg+au/legis/cth/num_reg+au/legis/cth/num_reg_es+au/legis/cth/repealed_reg+au/legis/cth/bill+au/legis/cth/bill_em+au/legis/cth/digest+au/legis/cth/table+au/other/HCAASP+au/other/hca/bulletin+au/other/HCASum+au/cases/cth/HCASL+au/cases/cth/HCATrans+au/other/AUOmbIRp+au/other/rulings/ato/ATOCR+au/other/rulings/ato/ATOER+au/other/rulings/ato/ATOFTD+au/other/rulings/ato/ATOFTR+au/other/rulings/ato/ATOGSTA+au/other/rulings/ato/ATOGSTB+au/other/rulings/ato/ATOGSTD+au/other/rulings/ato/ATOGSTR+au/other/rulings/ato/ATOLCTD+au/other/rulings/ato/ATOMTR+au/other/rulings/ato/ATOMTROS+au/other/rulings/ato/ATOPGBR+au/other/rulings/ato/ATOPR+au/other/rulings/ato/ATOPRP+au/other/rulings/ato/ATOSTRNS+au/other/rulings/ato/ATOSTR+au/other/rulings/ato/ATOSTD+au/other/rulings/ato/ATOSMSFD+au/other/rulings/ato/ATOSMSFR+au/other/rulings/ato/ATOSMSFPR+au/other/rulings/ato/ATOSCD+au/other/rulings/ato/ATOSCR+au/other/rulings/ato/ATOSD+au/other/rulings/ato/ATOSGD+au/other/rulings/ato/ATOSGR+au/other/rulings/ato/ATOTD+au/other/rulings/ato/ATOTR+au/other/rulings/ato/ATOITR+au/other/rulings/ato/ATOTGD+au/other/rulings/ato/ATOTGR+au/other/rulings/ato/ATOWETD+au/other/rulings/ato/ATOWETR+au/other/rulings/ato/ATODER+au/other/rulings/ato/ATODFTR+au/other/rulings/ato/ATODGSTD+au/other/rulings/ato/ATODGSTR+au/other/rulings/ato/ATODLCTD+au/other/rulings/ato/ATODMTR+au/other/rulings/ato/ATODMTROS+au/other/rulings/ato/ATODPGBR+au/other/rulings/ato/ATODSTD+au/other/rulings/ato/ATODSTRNS+au/other/rulings/ato/ATODSMSFR+au/other/rulings/ato/ATODSMSFD+au/other/rulings/ato/ATODSCD+au/other/rulings/ato/ATODSCR+au/other/rulings/ato/ATODSD+au/other/rulings/ato/ATODSGD+au/other/rulings/ato/ATODSGR+au/other/rulings/ato/ATODTD+au/other/rulings/ato/ATODTR+au/other/rulings/ato/ATODTGD+au/other/rulings/ato/ATODWETD+au/other/rulings/ato/ATODWETR">one senior judge</a> points out, “serious divergence of judicial opinion in this area” and the Family Law Act does not provide any clear answers. </p>
<p>The overall lack of flexibility for diverse families has led the <a href="https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/family-law-council-report-on-parentage-and-the-family-law-act-december2013.pdf">Family Law Council</a> to conclude the present framework does not “reflect the reality of parenting and family life for many children in Australia” and that comprehensive federal legislation that defines legal parentage across all circumstances is needed.</p>
<h2>How can we clarify the law?</h2>
<p>With such statutory complexity, the High Court may be limited in what it can do to clarify the law in Billie’s case. For decades, the Family Court has debated whether the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60h.html">provisions</a> in the Family Law Act regulating legal parentage for children conceived via assisted reproduction exclusively define legal parentage for these children, or merely enlarge the category of people who can be determined a parent. Neither of these approaches, however, adequately respond to the bigger issue of how “parent” is defined. </p>
<p>When interpreting the term “parent” within the Family Law Act, judges have assumed the use of the term “both parents” means a child may have a maximum of two parents, each of whom has “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1999/446.html">begotten or borne</a>” the child (unless an adoption order is in place, or a statutory exception applies).</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/victorias-world-first-change-to-share-sperm-or-egg-donors-names-with-children-72417">Victoria's world-first change to share sperm or egg donors' names with children</a>
</strong>
</em>
</p>
<hr>
<p>This biological interpretation is at odds with understandings of the meaning of “parent” in other areas of law. For example, in migration law, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2010/119.html">Full Federal Court</a> held in 2010 that the word “parent” is not limited to biological parents. Rather, it “is used today to signify a social relationship to another person” often characterised by “intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”. </p>
<p>In a number of other jurisdictions, including Canada’s <a href="https://www.cbc.ca/news/canada/british-columbia/1st-canadian-family-with-3-parents-on-birth-certificate-grows-1.2950107">British Columbia</a>, children can have more than two legal parents, where that reflects the intentions of all the adults before conception. </p>
<h2>Should children have a voice?</h2>
<p>But something important is missing from this debate. At 11 and ten, Billie and her younger sister could probably tell the court a lot about who they regard and rely on as their parents. Their legal parentage forms a crucial part of their legal kinship identity, and therefore part of their personal identity. It affects their legal relationships not just with their legal parents, but with one another as siblings and with extended family. </p>
<p>Yet <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s64b.html">amendments</a> to the Family Law Act in 2012 explicitly removed decisions surrounding legal parentage from “parenting orders” (ie, orders that state the parenting arrangements for a child, including matters such as who they live with and when). This means that when making decisions about a child’s parentage, the best interests of the child are not paramount and there is subsequently no requirement that the child’s views be considered. </p>
<p>When the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/789.html">trial judge</a> first heard Billie’s case in the Family Court, she discussed the children’s understanding of their family in the basic sense of who the children called “mummy” and “daddy”.</p>
<p>Ultimately, however, the judge emphasised Robert’s genetic contribution, and his intention to be a father in deciding that he was a legal parent (and that Margaret, who had been present at Billie’s conception, and has been one of her primary care-giving parents from birth, was not). </p>
<p>Achieving a more child-centred model of legal parentage is likely to be a long process, requiring significant changes to legislation. How the High Court responds to this case, and the curly problems of legal parentage it raises, may help shape reform.</p>
<hr>
<p><em>* This article uses the same pseudonyms used by the Family Court</em></p><img src="https://counter.theconversation.com/content/109140/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona Kelly receives funding from the Australian Research Council to study the relationships between people connected via donor conception.</span></em></p><p class="fine-print"><em><span>Hannah Robert 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>Who is a child’s legal parent? The question is at the heart of a case due before the High Court this year. It may have implications for children born via IVF or surrogacy, and the people who raise them.Hannah Robert, Lecturer in Law, La Trobe UniversityFiona Kelly, Professor, Law School, La Trobe 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>
<figure class="align-center ">
<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">
<figcaption>
<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>
</figcaption>
</figure>
<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>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/N9FPiNc6-dI?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<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>
<figure class="align-center ">
<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">
<figcaption>
<span class="caption">India has outlawed commercial surrogacy, but clinics are finding loopholes.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<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/961472018-06-19T14:09:20Z2018-06-19T14:09:20ZSurrogacy: what you need to know about having a baby<figure><img src="https://images.theconversation.com/files/220151/original/file-20180523-51102-1mkfg3a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTUyNzExMzY2NSwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfNjI3Nzc2MTM4IiwiayI6InBob3RvLzYyNzc3NjEzOC9odWdlLmpwZyIsIm0iOjEsImQiOiJzaHV0dGVyc3RvY2stbWVkaWEifSwiVStQcEpWNk53d0xHOGpLcmlZQVMxN2JNT3ZvIl0%2Fshutterstock_627776138.jpg&pi=33421636&m=627776138&src=NRLGCzGXj80IsT-v4i5ZQg-1-54">Shutterstock</a></span></figcaption></figure><p>Elton John and David Furnish, Kim and Kanye, and Sarah Jessica Parker and Matthew Broderick, have all received help <a href="http://www.vogue.co.uk/article/surrogacy-in-the-uk">from a surrogate</a> to have <a href="https://www.parents.com/parenting/celebrity-parents/moms-dads/celebrities-who-used-surrogates/">children</a>. But it’s not just something for the rich and famous.</p>
<p>People may choose to use a surrogate for all sorts of reasons – fertility issues, preexisting health problems, issues with previous pregnancies or age-related concerns – and of course, it can seem like a no-brainer for same-sex couples or single people looking to have a family of their own.</p>
<p>There are two types of legal surrogacy in the UK: gestational – where the surrogate is implanted with an embryo that has been fertilised in a lab using the intended mother’s or donor’s egg and the intended father’s or donor’s sperm. And traditional surrogacy – where the surrogate’s own egg is fertilised by the intended father’s sperm. </p>
<h2>What’s the legal situation?</h2>
<p>The current law means parents having a baby through surrogacy must apply for a court order to gain legal rights over the child once it has been born. This can take time and so can create issues around early life medical treatment or the consent to baby vaccinations, for example.</p>
<p>It can also mean that if a <a href="https://www.telegraph.co.uk/news/uknews/law-and-order/11583794/Surrogate-mother-launched-hate-campaign-against-babys-gay-father.html">surrogate mother changes her mind</a> about giving up the child, parents could face a long legal battle to try and claim the baby. This is because current rules in the UK give a woman automatic parentage over any child she gives birth to, even if the child is not biologically her own. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/220169/original/file-20180523-51121-3q122q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/220169/original/file-20180523-51121-3q122q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/220169/original/file-20180523-51121-3q122q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/220169/original/file-20180523-51121-3q122q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/220169/original/file-20180523-51121-3q122q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/220169/original/file-20180523-51121-3q122q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/220169/original/file-20180523-51121-3q122q.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">Although having a baby by surrogate in the UK is legal, the lack of detailed legislation can make it complicated.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTUyNzExNjcyMiwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfNjI3Njk2Mjg3IiwiayI6InBob3RvLzYyNzY5NjI4Ny9odWdlLmpwZyIsIm0iOjEsImQiOiJzaHV0dGVyc3RvY2stbWVkaWEifSwiQmVRMkcxRm04SVFDK1BzQ2dDclJ3MHBtSkNRIl0%2Fshutterstock_627696287.jpg&ir=true&pi=33421636&m=627696287&src=Y_O8bzG_ZzK-_JKP0AaQtg-1-0">Shutterstock</a></span>
</figcaption>
</figure>
<p>At the moment, the law currently only gives maternity leave and pay to the surrogate mother who will be giving birth to the baby. But the good news is that the government is looking into plans to reform surrogacy law. A three-year project will “consider the legal parentage of children born via surrogacy, and the regulation of surrogacy more widely,” <a href="https://www.thetimes.co.uk/article/surrogacy-laws-to-be-simplified-in-overhaul-7rj3tr6nm">according to the Law Commission</a>. </p>
<h2>How does it impact the child?</h2>
<p>There is really very little information about the effects on a child born in this way. But there is a lot of evidence now to show that the period before birth is just as important for the health of the baby as after the birth. <a href="https://www.nct.org.uk/about-nct/first-1000-days/why-its-vital">The NCT 1000 Days report highlights that</a>:</p>
<blockquote>
<p>The antenatal period is as important as infancy is, to the outcome for a child because maternal behaviour has such a strong impact on the developing foetus and the newborns health at birth.</p>
</blockquote>
<p>A <a href="https://onlinelibrary.wiley.com/doi/10.1111/j.1469-7610.2005.01453.x">recent study</a> indicated that children born through surrogacy have more problems with their behaviour and adjustment in childhood than those born either naturally or via other reproductive technologies such as egg donation. Their lives in the womb were cited as a salient factor.</p>
<p>In this way, the health of the surrogate child really depends on a trusting relationship between all parties concerned. All surrogates, whether traditional or gestational, are required to complete a health screening form – and in some cases may be required to show evidence of their blood tests to the potential parents or their representatives. </p>
<h2>What’s it like for the surrogate?</h2>
<p>Most surrogates don’t get into it for the money. They do it because they love children, and they want to help people who cannot have them. Being a surrogate isn’t an easy job – pregnancy puts a massive strain on the body.</p>
<p>The antenatal journey begins at conception and during this time, a surrogate mother’s behaviour is vitally important to the health and development of the unborn child’s brain. What she eats, what she feels and what she actually experiences, are all transmitted to the growing baby. </p>
<p>Her body’s contact with the unborn is powerful and so too is the sound of her voice, her heartbeat and the tender touch of her hands on her belly. Being relaxed brings benefits to the baby and can help to <a href="https://www.amazon.com/Scientification-Love-Revised-Michel-Odent/dp/1853432296">maintain calmness within the womb</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/220156/original/file-20180523-51121-rh3cqs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/220156/original/file-20180523-51121-rh3cqs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/220156/original/file-20180523-51121-rh3cqs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/220156/original/file-20180523-51121-rh3cqs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/220156/original/file-20180523-51121-rh3cqs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/220156/original/file-20180523-51121-rh3cqs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/220156/original/file-20180523-51121-rh3cqs.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">Being a surrogate is no easy task.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTUyNzExMzc5MywiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfNjk4MTY5NjkxIiwiayI6InBob3RvLzY5ODE2OTY5MS9odWdlLmpwZyIsIm0iOjEsImQiOiJzaHV0dGVyc3RvY2stbWVkaWEifSwiTlVzMzMrbmhqNEQ3dGpFb3hyZUNSSlpWVVJzIl0%2Fshutterstock_698169691.jpg&pi=33421636&m=698169691&src=7ltlrj4qNOP6w7AIm96RSg-1-2">Shutterstock</a></span>
</figcaption>
</figure>
<p>Even when the couple’s egg and the sperm are implanted into the surrogate’s womb, her ongoing pregnancy health can affect the immediate and long term health of the child. She needs to comply with antenatal care and be honest about her pregnancy lifestyle. Additionally, the couple need to be <a href="https://surrogate.com/surrogates/pregnancy-and-health/10-tips-for-surrogates-to-have-a-health-pregnancy/">honest with their medical history</a>.</p>
<p>So how much does it cost? In the UK, the majority of surrogacy cases will be privately funded. Around £15,000 is the going rate, which tends to cover loss of earnings, medication and supplements, as well as childcare and extra food costs. On top of this, couples also have to pay for fertility clinic costs and the court fee.</p><img src="https://counter.theconversation.com/content/96147/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Susan Baines 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 number of UK babies being born to surrogate mothers has risen by 255% in the past six years.Susan Baines, Lecturer in Midwifery and Healthcare Ethics, University of SalfordLicensed 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>
<figure class="align-right ">
<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">
<figcaption>
<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>
</figcaption>
</figure>
<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>
<iframe width="100%" height="166" scrolling="no" frameborder="no" src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/348544445&color=%23d8352a&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true"></iframe>
<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>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/-UR2jqICN4k?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<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/846642017-09-27T23:30:49Z2017-09-27T23:30:49ZEgg donors and surrogates need high-quality care<figure><img src="https://images.theconversation.com/files/187876/original/file-20170927-24212-1vu4go3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Egg donors, sperm donors and surrogates are critical participants and patients in the use of reproductive technologies - so why are their rights and heath repeatedly overlooked?</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Health Canada recently sought public input into new regulations for the use of assisted human reproduction. The consultation process covered everything from in-vitro fertilization (IVF) to egg and sperm donation and surrogacy.</p>
<p><a href="https://www.canada.ca/en/health-canada/programs/consultation-assisted-human-reproduction/document.html#a1">The consultation document</a> prioritizes the health and safety of men and women engaged in <a href="https://global.oup.com/academic/product/family-making-9780199656066?cc=gb&lang=en&">family-making</a> projects using assisted human reproduction. It also prioritizes the health and safety of children born of reproductive technologies. Meanwhile, the interests of those who contribute substantially to family-making — egg donors, sperm donors and surrogates — are repeatedly overlooked.</p>
<p>As researchers and advocates for women’s health, we are concerned about the ongoing failure on the part of Health Canada and others to see egg donors, sperm donors and surrogates as both critical participants and patients in the use of reproductive technologies. We urge policy makers to give due consideration to their health, well-being and interests in the making of public policy on assisted human reproduction.</p>
<h2>A narrow focus</h2>
<p><a href="http://laws-lois.justice.gc.ca/eng/acts/a-13.4/FullText.html">The Assisted Human Reproduction (AHR) Act </a> — the legislation governing the use of human reproductive technologies in Canada — was passed in 2004. As originally drafted, the act includes a number of provisions that require regulations in order for them to come into force. Most of these have never been introduced, including rules about how those donating eggs, sperm and embryos and those who act as surrogates should be paid.</p>
<p>Now, some 13 years later, Health Canada is finally taking the necessary steps to start drafting the missing regulations. An early step in this process has involved limited public consultation on a discussion document titled <em>Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Canadians on Key Policy Proposals</em>. This document provides information about the direction of regulations-to-come in support of the AHR Act and asks the public for input.</p>
<p>An important problem with the discussion document (and the direction of the regulations it outlines) is the narrow focus on those who use assisted reproduction to build a family and those who are born of these technologies. </p>
<p>What about those who assist others with their family-making project? Assisted human reproduction often involves others — including egg donors, sperm donors and surrogates. In the discussion document, their interests are too often overlooked.</p>
<h2>Risks of egg donation</h2>
<p>In the section on “product safety,” for example, the discussion document provides considerable detail about the ways in which eggs and sperm (gametes) should be acquired so as to protect the health and safety of those using assisted reproduction, and of the children born. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.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">Gamete donors and surogates are repeatedly viewed as mere ‘third parties’ in laws governing assisted reproduction in Canada and globally.</span>
<span class="attribution"><span class="source">(Unsplash/Sean Roy)</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>But what about the health and safety of the gamete providers and the surrogates? The risks associated with egg production, for example, <a href="https://www.ncbi.nlm.nih.gov/pubmed/18681998">are substantial</a>. And there are <a href="https://www.ncbi.nlm.nih.gov/pubmed/19022427">numerous reports</a> that <a href="http://jme.bmj.com/content/early/2016/03/07/medethics-2015-102964">informed consent is lacking</a>, as is <a href="http://www.cbc.ca/player/play/2198380237">adequate follow-up care</a> to address potential health risks such as ovarian hyperstimulation syndrome. </p>
<p>Nowhere does the government discussion document address the health and safety of the women from whom the so-called “products” are obtained.</p>
<h2>‘Third parties’ or vital contributors?</h2>
<p>In another section of the discussion document on the “risk of transmission of disease,” the focus is again narrowly on the would-be-parents and the children conceived. Accordingly, when reproductive material is tested and screened, the would-be parents are to be informed of the tests results so that they can take this information into consideration in making their reproductive choices. </p>
<p>There is no mention, however, of disclosing information about genetic or infectious disease to gamete donors and surrogates. Yet, surely they have an even greater claim on such information that they require to make both health-care and reproductive choices.</p>
<p>This lack of attention to the interests of gamete donors and surrogates has been a problem with the regulation of assisted reproduction in Canada from the beginning. These participants in assisted human reproduction are rarely included in policy consultations and their experiences are rarely studied. </p>
<p>They are typically referred to as “third-parties” in the reproductive process when they are, in fact, primary actors. In these ways they are thought of, and often treated, as nearly extraneous to the family-making projects they enable.</p>
<h2>Women as ‘spare parts’ and ‘walking wombs’</h2>
<p>Scholars in the field of assisted human reproduction (including us), have documented the many ways in which egg donors have come to be thought of as “<a href="http://www.utpjournals.press/doi/abs/10.3138/cjwl.25.2.249">spare parts</a>” rather than patients, and surrogates have long been dismissively thought of as “<a href="http://ca.wiley.com/WileyCDA/WileyTitle/productCd-0745602096.html">walking wombs</a>.”</p>
<p>This Health Canada consultation fails to see gamete donors and surrogates as participants in assisted reproduction, fully deserving of the same high-quality care as those who use the technologies to build their families. This is indicative of a broad and ongoing failure to take seriously the rights and interests of gamete donors and surrogates. </p>
<p>As Health Canada moves forward with this regulatory process, it is critical that all who participate in assisted human reproduction come to be understood as key actors in the use of reproductive technologies.</p><img src="https://counter.theconversation.com/content/84664/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alana Cattapan has received funding from the Social Sciences and Humanities Research Council of Canada and the Canadian Institutes of Health Research. She is on the Board of the Canadian Research Institute for the Advancement of Women.</span></em></p><p class="fine-print"><em><span>Françoise Baylis has received funding from the Canadian Institutes of Health Research and the Stem Cell Network. She wrote the expert ethics report for the Canadian government in the Reference regarding the Assisted Human Reproduction Act S.C. 2004, c.2. She was a member of the inaugural Board of Directors of Assisted Human Reproduction Canada (2006-2010).</span></em></p>Health Canada is drafting important regulations for assisted reproductive technologies. Initial documents treat egg donors and surrogates as little more than spare parts and walking wombs.Alana Cattapan, Assistant Professor, Johnson Shoyama Graduate School of Public Policy, University of SaskatchewanFrançoise Baylis, Professor and Canada Research Chair in Bioethics and Philosophy, Dalhousie UniversityLicensed 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>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/making-commercial-surrogacy-illegal-only-makes-aspiring-parents-go-elsewhere-54382">Making commercial surrogacy illegal only makes aspiring parents go elsewhere</a>
</strong>
</em>
</p>
<hr>
<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/813812017-07-24T23:12:29Z2017-07-24T23:12:29ZWhen women are surrogate mothers: Is that work?<figure><img src="https://images.theconversation.com/files/179282/original/file-20170721-28519-kkoca0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In an ideal world of gender equality and recognition for women's work, surrogacy could perhaps be part of a paid, legitimate economy. </span> <span class="attribution"><span class="source">(Camila Cordeiro on Unsplash)</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>A recent Canadian Medical Association Journal (CMAJ) <a href="http://cmajnews.com/2017/07/13/support-grows-for-paying-surrogates-cmaj-109-5444/">news article</a> reported that the <a href="https://cfas.ca/">Canadian Fertility and Andrology Society</a> (CFAS) has called for the federal government to reconsider the ban on payment for surrogacy in Canada. The article suggests that industry professionals and academics alike are coming around on compensation for surrogacy, with support growing all the time. </p>
<p>Although the CFAS statement was released in May, the CMAJ article reminds us that concerns about paying women for their reproductive labour are never far from the headlines. </p>
<p>In Canada, payment for surrogacy, egg donation and sperm donation is banned under the <a href="http://laws-lois.justice.gc.ca/eng/acts/a-13.4/">2004 Assisted Human Reproduction Act</a>. Under the Act, surrogates (like egg donors and sperm donors) can be reimbursed for receipted expenses. With a note from their doctor, surrogates can also receive some money for lost work-related income during pregnancy. </p>
<p>The Act states that this reimbursement of expenses must follow the relevant regulations. Until now, however, these regulations have never been drafted. After more than a decade, Health Canada is <a href="https://www.canada.ca/en/health-canada/programs/consultation-assisted-human-reproduction/document.html">now in the throes of making them</a>. This is occurring as <a href="https://www.theglobeandmail.com/opinion/surrogacy-in-canada-should-give-us-cause-for-concern/article32091525/">surrogacy in Canada is expanding</a> to accommodate more and more people from countries where surrogacy is more expensive, harder to access or banned completely.</p>
<p>It is in this context that the CFAS (which is a part-medical association, part-industry organization representing the fertility industry and its doctors, lawyers, scientists and ethicists) has called for the government to reconsider the ban on payment.</p>
<h2>A profitable market</h2>
<p>It is important to know that the market in surrogacy in Canada is a profitable one. Doctors, lawyers and other professionals charge large fees for assisting intended parents and surrogates. </p>
<p>There are many perspectives on paying surrogates, and they differ even among the authors of this article. Some argue that it is only fair that women who act as surrogates be paid. It is easy to think that the hard work and sacrifice of being pregnant and giving birth for someone else deserves at least some reward. Others think that Canadian law should allow only for the reimbursement of expenses — to avoid commercialization. </p>
<h2>Why “compensation” and not “payment”?</h2>
<p>Regardless of these varying ideas, the word “compensation” raises red flags. Talking about payment for surrogacy as “compensation” — rather than as work — perpetuates class-related assumptions about who “good surrogates” should be. And about how surrogacy relates to other forms of gendered and reproductive labour. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/179274/original/file-20170721-28492-aodhvy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/179274/original/file-20170721-28492-aodhvy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/179274/original/file-20170721-28492-aodhvy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/179274/original/file-20170721-28492-aodhvy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/179274/original/file-20170721-28492-aodhvy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/179274/original/file-20170721-28492-aodhvy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/179274/original/file-20170721-28492-aodhvy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The language of ‘compensation’ suggests that money is never a legitimate reason to become a surrogate.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>First, the language of “compensation” relies on underlying assumptions about who can, and should, be a surrogate. One of the many things that has worried critics in the past is that payment for surrogacy might lead to exploitation. The idea here is that money might serve as too great an incentive to participate, becoming women’s sole or primary motivation to be a surrogate.</p>
<p>This concern is based on the idea that compensation is something that is minimal, intended only to offset the time and risks involved in becoming a surrogate. This idea — <a href="https://www.amazon.ca/Clinical-Labor-Research-Bioeconomy-Experimental-ebook/dp/B00J59VN1M/ref=dp_kinw_strp_1">borrowed from clinical trials</a> with healthy volunteers — implies that by offering “compensation” we can recognize the challenges of participating without encouraging people to do it for the money. </p>
<p>In this way, payment is legitimate when people don’t need the money (but could use it) and potentially coercive when they do. </p>
<h2>Can’t poor women be good surrogates too?</h2>
<p>In the case of surrogacy, the rhetoric of “compensation” implies that poor women might be coerced or exploited, their consent unwitting. It implies that women with more economic resources can consent freely. </p>
<p>However, surrogates — like nurses, like teachers, like care workers — can participate for <a href="http://www.tandfonline.com/doi/full/10.1080/07078552.2016.1249125">both altruistic and economic reasons</a> at once. This is not to say that having a cadre of surrogates who are in it for money alone is desirable. But framing the work that surrogates do as “compensation” suggests that money is never a legitimate reason to partake. </p>
<p>It makes it impossible for women to participate who might, in fact, need the money.</p>
<h2>Surrogacy as gendered, intimate and reproductive labour</h2>
<p>Second, the word “compensation” distracts from the relationship between surrogacy and other forms of gendered, intimate and reproductive labour. Surrogacy produces real live people and this should not be overlooked. Surrogacy is of course different from the kinds of labour that midwives and nurses and caregivers do. </p>
<p>But recognising that <a href="http://onlinelibrary.wiley.com/doi/10.1111/dewb.12141/full">surrogacy is a form of work</a> draws attention to the broader spectrum of women’s work that exists at once inside and outside of well-regulated, well-valued work. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/179272/original/file-20170721-28465-1uufydp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/179272/original/file-20170721-28465-1uufydp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=438&fit=crop&dpr=1 600w, https://images.theconversation.com/files/179272/original/file-20170721-28465-1uufydp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=438&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/179272/original/file-20170721-28465-1uufydp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=438&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/179272/original/file-20170721-28465-1uufydp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=551&fit=crop&dpr=1 754w, https://images.theconversation.com/files/179272/original/file-20170721-28465-1uufydp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=551&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/179272/original/file-20170721-28465-1uufydp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=551&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Women work in the fields in this photographic reproduction of Jean-François Millet’s painting, Gleaners.</span>
<span class="attribution"><span class="source">(Wikamedia Commons)</span></span>
</figcaption>
</figure>
<p>In an ideal world, women’s equality would be uncontested. Reproductive labour in the home, in schools, in hospitals and daycares would be seen for the important work that it is. In this world, surrogacy could perhaps be part of a paid, legitimate economy. However, in a context where gendered and reproductive labour continue to be undervalued, surrogacy will likely be undervalued too. </p>
<p>As the CFAS urges Health Canada to move beyond the current regulatory process to consider compensation for surrogacy, we need to think carefully about what “compensation” is and does. </p>
<p>Speaking about “compensation” is a way of avoiding difficult conversations about payment to surrogates. If we are going to move forward, we will need to have those conversations.</p><img src="https://counter.theconversation.com/content/81381/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alana Cattapan has received funding from the Canadian Institutes of Health Research and the Social Sciences and Humanities Research Council. </span></em></p><p class="fine-print"><em><span>Angela Cameron receives funding from the Social Sciences and Humanities Research Council.</span></em></p><p class="fine-print"><em><span>Vanessa Gruben receives funding from the Social Sciences and Humanities Research Council. </span></em></p>As the Canadian Fertility and Andrology Society urges the government to consider “compensation” for surrogacy, we need to talk about the implications of this rhetoric for women.Alana Cattapan, Assistant Professor, Johnson Shoyama Graduate School of Public Policy, University of SaskatchewanAngela Cameron, Associate Professor of Law, L’Université d’Ottawa/University of OttawaVanessa Gruben, Associate Professor of Law, L’Université d’Ottawa/University of OttawaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/711172017-01-19T15:43:43Z2017-01-19T15:43:43ZWhy South Africa should redefine disability to include infertility<figure><img src="https://images.theconversation.com/files/152990/original/image-20170117-23075-1um8fzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>Infertility, the inability to conceive or sustain a successful pregnancy, affects more than 48 million couples in the <a href="http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1001356">world</a>. Of these, ten million live in Sub-Saharan Africa. </p>
<p>The prevalence of infertility is much higher in developing countries than in the developed world. This is due to a number of factors, including poor access to assisted reproductive techniques and proper health care. </p>
<p>In South Africa, infertility occurs in 15% to 20% of the population. That’s one in every six couples. Most turn to surrogacy or adoption to become parents. But, under the country’s labour law, they <a href="https://theconversation.com/leave-for-surrogate-parents-in-south-africa-no-time-for-baby-steps-60071">don’t have the same rights</a> as conventional parents to take time off from work to care for their children.</p>
<p>This disparity constitutes unfair treatment. Unfortunately, the aggrieved parties do not have any recourse under the law to claim unfair, differential treatment. This is because infertility is not listed as a ground on which a claim of unfair discrimination may be lodged under the Employment Equity <a href="http://www.labour.gov.za/DOL/legislation/acts/employment-equity/employment-equity-act">Act</a>. </p>
<p>To address the anomaly and provide better protection for infertile employees, the most suitable option would be to consider infertility as a form of disability. But, to be considered as grounds to claim discrimination on the basis of disability, infertility would need to fall under the legal definition of disability. This is not the case in South Africa.</p>
<p>Also, the country does not have any independent disability legislation. It does have a code of good practice covering people with disabilities. But this is merely a guideline for employers and does not have the authority of law. </p>
<p>The Employment Equity Act – and the disability code – provide a restricted view of who is considered to have a disability. It simply states that to be classified as disabled, the physical impairment must substantially limit an employee’s prospects of entry to and advancement in employment. This narrow view excludes infertility from the definition.</p>
<p>This is at odds with the definition of disability provided for by the World Health Organisation (WHO), of which South Africa is a member. The WHO expressly <a href="http://www.who.int/classifications/icf/en/">classifies</a> infertility as a disability.</p>
<p>The US, for example, provides for disability in line with the WHO’s definition. The <a href="https://www.ada.gov/2010_regs.htm">Americans with Disabilities Act</a> describes disability as a physical impairment which affects various body systems, including the reproductive system. This covers infertility.</p>
<p>Zimbabwe, too, follows a more inclusive approach to what constitutes a disability. <a href="http://www.parlzim.gov.zw/acts-list/disabled-persons-act-17-01">Zimbabwe’s Disabled Persons Act</a> does not require the impairment to be substantially limiting. Rather, it provides that a person is considered to be disabled when a physical disability gives rise to physical, cultural and social barriers. This ultimately covers infertility.</p>
<h2>Infertility as a disability</h2>
<p><a href="http://www.gov.za/documents/constitution-republic-south-africa-1996">South Africa’s Constitution</a> provides that courts, forums and tribunals must consider international law when interpreting the <a href="http://www.gov.za/documents/constitution/chapter-2-bill-rights#39">Bill of Rights</a>.</p>
<p>Given the absence of a clear definition of disability and the limited view of who should be regarded as having a disability, it would be of immense value to consider what the WHO and the International Labour Organisation say on the subject. </p>
<p>This would create a path out of the current narrow approach to a more inclusive one. Including different types of impairments, such as infertility, under the umbrella of disability would protect people’s rights at work.</p>
<p>If infertility was to be considered a disability under South African labour law, it would require employers to reasonably accommodate infertile employees. This would include the duty to provide appropriate leave for the unique circumstances of surrogacy and adoption. </p>
<p>Failure to provide appropriate leave to these parents to care for their child would then be a breach of the employer’s duty. It would thus constitute indirect unfair discrimination on the basis of disability. Employees who have infertility would finally get recourse under the law to lodge a claim of unfair discrimination should they be treated differently in the awarding of parental leave due to their unique circumstances.</p><img src="https://counter.theconversation.com/content/71117/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>South Africa lacks a clear definition of disability – and its limited view of who should be regarded as having a disability in the labour market is at odds with international practice.Anri Botes, Senior Lecturer in Labour Law, North-West UniversityLaetitia Fourie, Lecturer in Mercantile Law, University of the Free StateLicensed 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/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/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.