tag:theconversation.com,2011:/es/topics/baby-gammy-14121/articlesBaby Gammy – The Conversation2016-02-18T03:58:54Ztag:theconversation.com,2011:article/543822016-02-18T03:58:54Z2016-02-18T03:58:54ZMaking commercial surrogacy illegal only makes aspiring parents go elsewhere<figure><img src="https://images.theconversation.com/files/111727/original/image-20160217-19241-1ne00m4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The most important thing when considering surrogacy laws are the rights of the children.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/bibbit/4239068799/">Bridget Coila/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>When many people hear the word “surrogacy” their immediate reaction is to think of the plight of <a href="http://www.smh.com.au/national/australian-couple-leaves-down-syndrome-baby-with-thai-surrogate-20140731-zz3xp.html">Baby Gammy</a>, abandoned in Thailand by his intended parents.</p>
<p>Yet stories like this do not reflect the experience of hundreds of Australians who travel overseas every year to start a family through compensated surrogacy. For the overwhelming majority of these people, the experience is costly and stressful, but not exploitative or degrading.</p>
<p>People who require the services of a surrogate in order to have a child are going offshore because the only surrogacy permitted in Australia is altruistic surrogacy. Laws in all Australian states and territories, except the Northern Territory, prohibit the payment of any money to a surrogate, beyond reimbursement of reasonable medical expenses.</p>
<p>Because of this prohibition on compensated surrogacy within Australia, hundreds of couples go overseas every year to engage the services of a surrogate. This is true even in Queensland, New South Wales and the ACT, where it is a criminal offence to enter into a compensated surrogacy arrangement overseas. </p>
<p>These laws are clearly an abject failure. They are not deterring people from heading offshore to engage in surrogacy. There has not been a single prosecution, let alone a conviction, for pursuing extra-territorial surrogacy.</p>
<p>Against this backdrop, the federal parliament’s Standing Committee on Social Policy and Legal Affairs is conducting an <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Inquiry_into_surrogacy">inquiry</a> into the regulatory and legislative aspects of international and domestic surrogacy arrangements. It is expected to finalise its report in June 2016. </p>
<p>This is a welcome development. Although there is no consensus on how compensated surrogacy should be regulated, there is general agreement that the current system is not working.</p>
<p>One way of working through all the ethical, moral and legal questions associated with surrogacy is to use international human rights law as the lens through which to consider the issues. In the foreword to my recent <a href="https://www.routledge.com/products/9781472451248">book on surrogacy</a>, Gillian Triggs, president of the Australian Human Rights Commission, observed that international human rights treaties:</p>
<blockquote>
<p>… now provide a body of law that can inform our approaches to new ethical and legal challenges, including those stimulated by scientific advances.</p>
</blockquote>
<p>The starting point in any consideration of regulating compensated surrogacy must be the best interests and rights of the child. The <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx">Convention on the Rights of the Child</a>, which binds Australia (and every other country in the world except the United States), does not explicitly mention surrogacy. However, several provisions can guide consideration of how to regulate surrogacy to protect the best interests of children born through this procedure. </p>
<p>Article 7 provides that children have a right to an identity and to know and be cared for by their parents. Children born through surrogacy may have up to five parent-like people: two intended parents, a sperm donor, an egg donor and the surrogate. In this context, Article 7 is best understood as meaning that children have a right to know their biological and gestational parents and to be cared for by their intended parents. </p>
<p>With many overseas surrogacies, the record-keeping is poor or non-existent, making it impossible for a child to find out their genetic origins. Australia has one of the <a href="https://theconversation.com/secrets-and-lies-why-donor-conceived-children-need-to-know-their-origins-44015">best systems</a> in the world for recording persons who donate eggs and sperm. This ensures that children born through surrogacy in Australia will be able to identify all the people associated with their creation. </p>
<p>Many people’s reaction to surrogacy today is reminiscent of the reaction to IVF when the first “test-tube baby” was born in Australia in 1980. As Peter Illingworth, president of the Fertility Society of Australia, <a href="http://www.abc.net.au/news/2010-06-23/first-ivf-baby-turns-30/877426">noted</a>:</p>
<blockquote>
<p>At the time babies being born through this sort of technology was considered revolutionary and really quite odd and unusual and quite bizarre […] many people had fears that we were entering into a brave new world of designer babies and synthetic babies and there was a lot of concern and fear.</p>
</blockquote>
<p>We need to acknowledge and address the legitimate fears that people have about surrogacy. But rather than trying to stop these scientific advances, we should put in place safeguards to prevent exploitation of vulnerable women and protect the rights of children born through surrogacy.</p>
<p>It is time to allow compensated surrogacy to take place in Australia by creating a legal framework that avoids the laissez-faire approach seen in some parts of the US, and the harmful practices seen in many developing countries that lack the high-quality health care and legal systems that Australia has.</p>
<p>When moving forward, we would do well to keep in mind the words of Lebanese philosopher <a href="http://www.katsandogz.com/onchildren.html">Khalil Gibran</a>: </p>
<blockquote>
<p>Your children are not your children […] they come through you but not from you,
and though they are with you yet they belong not to you […] you may give them your love but not your thoughts, for they have their own thoughts. You may house their bodies but not their souls.</p>
</blockquote>
<p>This reminds us that how a child is conceived, and how a child is born, is largely irrelevant. What is important is that children are loved and their inherent dignity respected. </p>
<p>If we bear this in mind, we should be able to develop a regulatory system that allows compensated surrogacy to take place in Australia, rather than forcing people to pursue such arrangements offshore.</p>
<hr>
<p><em>For further insight into all the human rights issues involved in compensated surrogacy, including whether surrogacy amounts to the sale of children in breach of Article 35 of the CRC, watch this <a href="https://www.youtube.com/watch?v=llVRHwZICr0">2015 TEDxTalk</a>.</em></p><img src="https://counter.theconversation.com/content/54382/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paula Gerber does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>People who require the services of a surrogate to be able to have a child are going offshore because the only surrogacy permitted in Australia is altruistic surrogacy.Paula Gerber, Professor, Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/437062015-06-24T01:33:56Z2015-06-24T01:33:56ZFactCheck: is Australia legally obliged to look after children abandoned after commercial surrogacy?<blockquote>
<p>“I would imagine there’d be a number of reasons why the police should be involved and obviously the welfare authorities as well… I would have thought also that Australia has some obligation to track down and look after the welfare of the child that has been left behind.” <strong>– Chief Justice of the Federal Circuit Court, John Pascoe, <a href="http://www.abc.net.au/news/2015-06-23/judge-calls-investigation-claims-couple-abandoned-surrogate-baby/6565012">Foreign Correspondent, June 23, 2015</a>.</strong></p>
</blockquote>
<p>Details of a 2012 case of an Australian couple who were delivered a set of twins, a boy and girl, via a commercial surrogacy arrangement in New Delhi, continue to be revealed, most recently by this week’s episode of <a href="http://www.abc.net.au/foreign/content/2015/s4260667.htm">Foreign Correspondent</a>. </p>
<p>Shortly after the birth the couple told Australian High Commission staff in New Delhi they would be adopting out the boy, and returning to Australia with the girl. Citizenship and a passport were subsequently granted for the girl.
However, controversy remains regarding who adopted the boy, and whether money changed hands. </p>
<p>Should the police be involved and does Australia have obligations to track down the boy and ensure his welfare? </p>
<h2>Acting contrary to the law of NSW</h2>
<p>Commercial surrogacy is prohibited by law in all states of Australia and the ACT. In NSW, where the couple reside, the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2010139/s8.html">prohibitions</a> apply <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/sa2010139/s11.html">extra-territorially</a>. This means that people from NSW who travel elsewhere to engage in commercial surrogacy, including the couple in question, are breaking the law. (Extra-territorial prohibitions also apply in Queensland and the ACT). </p>
<p>The extra-territorial laws, which passed via a “<a href="http://www.aph.gov.au/help/glossary#F">free vote</a>” in the NSW parliament, were based upon the view that commercial surrogacy places the needs of intending parents above the needs of the child, and that gaining access to children by circumventing local laws and travelling overseas “<a href="http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20101028007">was not a practice that …lawmakers …should encourage</a>”. </p>
<p>The NSW couple could therefore be prosecuted in Australia for entering into the arrangement. If found guilty of breaking the law they face fines of up to A$110,000 and/or imprisonment for two years.</p>
<h2>What other sanctions might apply?</h2>
<p>In the abovementioned Foreign Correspondent report, Shakhar Naphade, Senior Counsel to the Indian Supreme Court suggested the couple may have engaged in child abandonment under Indian law. <a href="http://indiankanoon.org/doc/9383/">Section 317</a> of the Indian Penal Code provides for the offence, which carries a penalty of up to seven years imprisonment (and/or fines). Treaty obligations between Australia and India would enable extradition of the couple to India for prosecution. Naphade further suggested that if the child had been abandoned, the Australian government may have aided and abetted such abandonment.</p>
<p>However, whether the law of abandonment applies in circumstances in which a child is relinquished by its birth mother and father for adoption needs to be determined. Pursuant to the <a href="http://indiankanoon.org/doc/946025/">Hindu Adoptions and Maintenance Act, 1956</a> it is legal for a birth mother and father to consent to the adoption of a child, provided certain criteria is met.</p>
<h2>Is the boy an Australian citizen?</h2>
<p>The legal status of the boy is important in determining who has obligations to ensure his welfare and safety.</p>
<p>A child born outside Australia as a result of a surrogacy arrangement is eligible for Australian citizenship by descent if, at the time of birth, they had a parent who was an Australian citizen (including where the commissioning person(s) have contributed sperm, egg or embryo provided a biological connection is established using medical records and/or DNA testing). </p>
<p>However, Australian citizenship by descent does not occur automatically. An application must be made pursuant to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s15a.html">Australian Citizenship Act 2007</a> and the policy guidelines set out in the <a href="http://www.citizenship.gov.au/_pdf/acis-july-2013.pdf">Australian Citizenship Instructions</a>. </p>
<p>As there was no application by the commissioning couple for Australian citizenship for the boy, he is not an Australian citizen.</p>
<h2>What if he was legally adopted?</h2>
<p>Under <a href="http://indiankanoon.org/doc/946025/">Hindu adoption laws</a>, from the date of adoption an adopted child is deemed to be the child of his or her adoptive father or mother for all purposes. The boy would continue to be an Indian citizen, and is not stateless. All the ties of the child with the family of his birth are deemed to be severed and replaced by those created by the adoption in the adoptive family. </p>
<h2>Does Australia have a legal obligation to track down the boy and look after his welfare?</h2>
<p>Australia is a party to the United Nations <a href="http://www.ohchr.org/en/professionalinterest/pages/crc.aspx">Convention on the Rights of the Child</a>, its <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx">optional protocols</a>, and the <a href="http://www.hcch.net/index_en.php?act=conventions.text&cid=69">Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption</a>. All oblige Australia to protect the fundamental rights of children and prevent their abduction, sale, or trafficking. Australia has <a href="http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Documents/OPSCListofIssuesresponse.doc">cited</a> NSW prohibitions on commercial surrogacy as one way it meets such obligations. </p>
<p>However, Australia does not have legal obligations toward specific children who are not within its jurisdiction. The Department of Foreign Affairs said concerning the particular case:</p>
<blockquote>
<p>“As no application for Australian citizenship or passport was made for the male child at the time, India became responsible for his welfare and adoption arrangements became a matter for its legal system. Australian officials at the High Commission have no concerns regarding the legality of the adoption in India…”</p>
</blockquote>
<p>Nevertheless, despite no apparent legal obligation to act, Australian authorities may have a <a href="http://legal-dictionary.thefreedictionary.com/moral+obligation"><em>moral</em> obligation</a> to ensure the boy is safe and well. Arguably that moral obligation would extend to providing the boy information about his biological heritage and siblings. </p>
<h2>Would allowing commercial surrogacy in Australia prevent such occurrences?</h2>
<p>There is no evidence that permitting commercial surrogacy in Australia would prevent such occurrences. </p>
<p>It is possible that some people would still travel for reasons including, but not limited to, lower costs, sex-selection, a preference for not having contact with the surrogate mother or sperm/egg/embryo donor(s) after birth, and/or to avoid meeting other legal criteria. </p>
<p>It is also legal to relinquish children for adoption in Australia, and the couple would not have been obliged to care for a son they did not want here either.</p>
<h2>Verdict</h2>
<p>The couple may face legal prosecution under both Australian and Indian law, if the authorities decide to pursue them. </p>
<p>Australia has an obligation to enforce the laws it claims exist to protect children from exploitation, commodification, sale or trafficking. Doing so may deter some other people from engaging in commercial surrogacy arrangements.</p>
<p>Australia may not have a legal obligation to find the boy, however it may have a moral obligation to check on his safety and well-being.</p>
<hr>
<h2>Review</h2>
<p>This analysis of Australia’s legal and moral obligations toward a boy born to Australian commissioning parents in India is both sound and considered. </p>
<p>It points to the limits of current legal frameworks to protect children born of these arrangements and their skewed approach to prioritising the interests of commissioning parents over the rights of those children. </p>
<p>This article further highlights the need for international engagement on the issue of commercial surrogacy to protect the rights and interests of children. </p>
<p>Finally, the article addresses the overly simplistic argument that permitting commercial surrogacy in Australia would provide an acceptable alternative by outlining those reasons why many commissioning parents will still seek an overseas solution. <strong>– Liz Bishop</strong></p>
<hr>
<p><div class="callout"> Have you ever seen a “fact” that doesn’t look quite right? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.</div></p><img src="https://counter.theconversation.com/content/43706/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Fresh details have emerged of a 2012 case of an Australian couple who were delivered twins via a commercial surrogacy arrangement in India, but brought only one twin home. Does Australia have obligations to ensure the other twin’s welfare?Sonia Allan, Senior Lecturer, Law, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/354952014-12-25T19:40:08Z2014-12-25T19:40:08Z2014: the year international surrogacy came to the fore<p>This year the international spotlight turned with full-force on cross-border commercial surrogacy. The reality of children being born this way and the potentially devastating consequences of babies being abandoned and stateless shocked our collective consciousness.</p>
<p>Such was <a href="https://theconversation.com/baby-gammy-tales-of-the-unexpecting-30339">the case of Baby Gammy</a>, born with Down syndrome and left in Thailand with his surrogate mother by commissioning parents David and Wendy Farnell. His story made the Australian public confront the often-disturbing reality of the international commercial surrogacy industry. </p>
<p>This industry provides on-demand, made-to-order children, allowing commissioning clients to circumvent the often prohibitive laws on commercial surrogacy in their home countries. It is a high-risk, high-stakes transaction for all involved. </p>
<p>Through Baby Gammy and more recently, <a href="http://www.abc.net.au/news/2014-10-08/high-commission-knew-of-surrogacy-case-in-india/5799438">the situation of a twin-child left in India</a> by Australian commissioning parents (which senior Australian judges have said may amount to child-trafficking), we have witnessed the heightened vulnerability of children born this way. </p>
<h2>A problematic practice</h2>
<p>When I began working on international surrogacy issues in 2009, there was little public awareness about people from Australasia having children in places such as India and Thailand through surrogate mothers. The fact that such children were sometimes conceived using the eggs or sperm from third parties in other countries was even less known.</p>
<p>Fast-forward to 2014, and times have somewhat changed. Far less explanation is necessary about what international surrogacy is and what it entails. But reactions still range from the morally outraged, to a permissive “why not?” attitude.</p>
<p>Yet despite more community understanding, ignorance surrounding the ethical, legal, and human rights challenges triggered by the practice persists. And this gap means positive action to protect children in international commercial surrogacy in a comprehensive and systematic manner is seriously lacking. </p>
<p>The <a href="http://www.ohchr.org/en/professionalinterest/pages/crc.aspx">United Nations Convention on the Rights of the Child</a> states all children have rights to nationality, birth registration, preservation of their identity, to be cared for in a family environment, know their parents, not be discriminated against and not be sold or trafficked. Children with disabilities have additional particular rights. </p>
<p>But children born through international commercial surrogacy are routinely at risk of having these rights violated. Indeed, many children born this way have ended up stateless and stranded in their birth country (for example, <a href="https://web.duke.edu/kenanethics/CaseStudies/BabyManji.pdf">Baby Manji</a>, <a href="http://www.washingtonpost.com/wp-dyn/content/article/2011/02/26/AR2011022601088.html">Baby Samuel Ghilain</a>, and the <a href="http://timesofindia.indiatimes.com/india/German-surrogate-twins-to-go-home/articleshow/5978925.cms">Balaz</a> and <a href="http://timesofindia.indiatimes.com/city/mumbai/Stateless-twins-live-in-limbo/articleshow/7407929.cms">Volden</a> twins). </p>
<p>Some have been left without legal status and legally recognised parents (as in the <a href="http://hudoc.echr.coe.int/webservices/content/pdf/003-4804617-5854908">Mennesson and Labassee cases</a>, recently adjudicated by the European Court of Human Rights), or abandoned, devoid of a family environment. </p>
<p>The vast majority of children born through international commercial surrogacy face difficulties in preserving aspects of their identity due to the involvement of anonymous genetic donor parents, surrogate mothers, and the fact they’re born with the intention of being supplanted into another country and culture. </p>
<p>Indeed, international commercial surrogacy is arguably a market in which children are bought and sold; where they are commodities at risk of trafficking. This raises questions about whether this practice can ever be consistent with our internationally agreed ban on the sale of children. </p>
<h2>The right focus</h2>
<p>Despite these problems, the practice shows no sign of waning. In India alone, although reliable data is lacking, the surrogacy industry is reportedly worth between <a href="http://www.womenleadership.in/Csr/SurrogacyReport.pdf">US$450 million</a> to <a href="http://www.thehindu.com/todays-paper/tp-national/tp-otherstates/activists-call-for-stringent-regulations-for-surrogacy/article6348214.ece">US$2.3 billion</a>. And it continues to grow. People from Australia and other developed countries drive demand, despite the many cautionary tales of what can and, sometimes does, go wrong.</p>
<p>We must agree, at national, regional, and global levels that children and protection of their rights must be at the heart of any approach dealing with international commercial surrogacy. A starting point for achieving this is the protection framework provided by the UN Convention on the Rights of the Child.</p>
<p>That framework should inform the development of national legislation and policy regulating international commercial surrogacy (immediate, short-term goal), as well as an international regulatory framework (long-term goal). </p>
<p>What’s more, national and international efforts must make human rights protection their core focus. Both better national legislation and international agreement is urgently needed to deal with currently conflicting national laws and protection gaps jeopardising the child’s rights.</p>
<p>Placing the central focus on children does not mean the rights and interests of other people involved in international surrogacy are not at risk. They are, and they require protection too. The human rights of women acting as surrogates are particularly important, given they may not – in developing countries at least – become surrogates of their own free will. And they may be open to exploitation, including <a href="ftp://ftp2.allianceantitrafic.org/alliancea/001%20%20Vietnam/ReportFinal_SurrogacyCase_RoleAAT+PressReview.pdf">human trafficking</a>.</p>
<p>We must act now to prevent international commercial surrogacy from developing further as an international human rights problem affecting a new generation of children and those who bring them into the world.</p>
<p>Work on the legal, ethical, cultural, and health issues raised by international commercial surrogacy is necessary and much needed. But the human rights issues it raises remain the most pressing. In particular, we must focus on the child, born into a situation of significant human rights risk through no fault of their own.</p><img src="https://counter.theconversation.com/content/35495/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Achmad 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>This year the international spotlight turned with full-force on cross-border commercial surrogacy. The reality of children being born this way and the potentially devastating consequences of babies being…Claire Achmad, PhD Candidate, Department of Child Law, Leiden UniversityLicensed as Creative Commons – attribution, no derivatives.