tag:theconversation.com,2011:/nz/topics/international-surrogacy-14120/articlesInternational surrogacy – The Conversation2022-03-22T01:05:00Ztag:theconversation.com,2011:article/1796522022-03-22T01:05:00Z2022-03-22T01:05:00ZRussia’s invasion is wreaking havoc with surrogacy in Ukraine. It shows why Australia must change its laws<figure><img src="https://images.theconversation.com/files/453198/original/file-20220321-19-h9429x.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6000%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Russia’s invasion of Ukraine is a nightmare for prospective parents engaged in surrogacy arrangements in the country.</p>
<p>Ukraine has become a popular destination for surrogacy. While exact numbers are difficult to obtain, it’s <a href="https://www.bionews.org.uk/page_162770">estimated</a> between 2,000 and 2,500 babies are born each year via surrogacy in Ukraine. </p>
<p><a href="https://biotexcom.com/">BioTexCom</a>, one of the largest fertility clinics in Ukraine, is <a href="https://www.theatlantic.com/health/archive/2022/03/russia-invasion-ukraine-surrogate-family/623327/">expecting 200 babies</a> to be born via surrogacy by the end of May. </p>
<p><a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">More than ten Australian families</a> are expecting babies to be born via surrogacy in Ukraine by the first week of May.</p>
<p>But it’s currently extremely challenging for such parents to cross the border into Ukraine to meet their babies. This is a disaster for the babies, the surrogates and the intended parents.</p>
<p>The babies are left in limbo, born into a war zone without their parents to look after them. The surrogates have to give birth in a war zone and then aren’t able to hand the babies over to the intended parents.</p>
<p>As for the <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">intended parents</a>, one can hardly imagine how distressing it must be to know your baby has been born, or is about to be born, but not know how or when you can reach them.</p>
<p>The situation highlights why Australia must change its surrogacy laws.</p>
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<h2>Why are Australians travelling to Ukraine for surrogacy?</h2>
<p>Ukraine is a popular surrogacy destination for several reasons. </p>
<p>One is <a href="https://www.sensiblesurrogacy.com/surrogacy-in-ukraine/#surrogacy-cost-ukraine">financial</a>. Surrogacy in Ukraine is more affordable than in the United States, for example. Surrogacy in Ukraine is <a href="https://www.abc.net.au/news/2018-12-15/inside-ukraines-surrogacy-industry/10614172">estimated</a> to cost approximately USD $40,000 (A$54,000), whereas surrogacy in the United States <a href="https://www.creatingfamilies.com/parent/surrogacy-costs/">can cost</a> as much as USD $150,000 (A$202,000). </p>
<p>Another is <a href="https://www.sensiblesurrogacy.com/surrogacy-in-ukraine/#surrogacy-cost-ukraine">legal</a>. Under Ukrainian law, unlike in Australia for example, the intended parents are recognised as the legal parents of a child born through surrogacy at birth.</p>
<p>Although it’s worth noting only heterosexual married couples are able to access surrogacy in the country.</p>
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Read more:
<a href="https://theconversation.com/arrests-and-uncertainty-overseas-show-why-australia-must-legalise-compensated-surrogacy-69203">Arrests and uncertainty overseas show why Australia must legalise compensated surrogacy</a>
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<p>For the vast majority of people, surrogacy isn’t their preferred way to have a child, but an <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">option of last resort</a>.</p>
<p>For example, for one Australian couple, the topic of a recent Sydney Morning Herald <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">article</a>, surrogacy was their only option. They’d lost three pregnancies, and their use of surrogacy in Ukraine was the culmination of an excruciating six-year journey.</p>
<h2>Australian laws encouraging cross-border surrogacy</h2>
<p>The stress involved in cross-border surrogacy highlights this further. The vast majority of Australians who travel overseas to access surrogacy arrangements would prefer to do so back home, but <a href="https://www.surrogacyaustralia.org/australian-surrogacy-legislation/">Australian law</a> presents a significant obstacle.</p>
<p>In Australia, only “altruistic surrogacy” is permitted, where the surrogate mother doesn’t benefit financially from the arrangement.</p>
<p>But “compensated” or “commercial” surrogacy, where the surrogate does receive a financial benefit, is prohibited. </p>
<p>The prohibition of compensation is problematic for a number of reasons. From the perspective of the surrogate, it’s inherently exploitative to refuse to allow a woman to be paid for her reproductive labour. And the obsession with “altruism” amplifies problematic stereotypes and expectations of the “self-sacrificing woman”. </p>
<p>From the perspective of intended parents, the prohibition of compensation has led to a predictable dearth of Australian women willing to become surrogates.</p>
<p>This has fuelled the popularity of cross-border compensated surrogacy, which is illegal for residents of New South Wales, Queensland and the ACT but widely undertaken.</p>
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<img alt="Couple embracing with ultrasound image of baby" src="https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/453208/original/file-20220321-25-1ekx91d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">For some, surrogacy is their only option.</span>
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<h2>What’s the solution?</h2>
<p>All Australian states and territories should amend their laws to allow for compensated surrogacy.</p>
<p>Regulating behaviour that is already occurring, and to which law enforcement is <a href="https://www.smh.com.au/world/europe/the-desperate-mission-to-get-an-australian-baby-out-of-ukraine-20220303-p5a1hj.html">turning a blind eye</a>, has three key benefits:</p>
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<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>
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<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/989662018-07-30T11:44:12Z2018-07-30T11:44:12ZSurrogacy laws: why a global approach is needed to stop exploitation of women<figure><img src="https://images.theconversation.com/files/229096/original/file-20180724-194131-1brr1r9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Surrogacy may have become a popular way for many couples in the limelight to have children – notably <a href="http://time.com/5070296/surrogacy-baby-kim-kardashian-kanye-west/">Kim and Kanye</a>, <a href="https://www.telegraph.co.uk/news/celebritynews/8228831/Elton-John-and-David-Furnish-become-parents-the-surrogacy-agency-used-by-high-profile-clients.html">Elton John and David Furnish</a>, as well as <a href="https://www.theguardian.com/lifeandstyle/2009/apr/30/sarah-jessica-parker-twins-surrogate">Sarah Jessica Parker and her husband Matthew Broderick</a>. But it isn’t just a service for the rich and famous.</p>
<p>People may choose to <a href="https://theconversation.com/surrogacy-what-you-need-to-know-about-having-a-baby-96147">use a surrogate for all sorts of reasons</a> – fertility issues being the obvious one – but people with health problems or complications with previous pregnancies as well as same-sex couples or single people looking to start a family, are all also common clients.</p>
<p>In the UK, altruistic (unpaid) <a href="https://www.legislation.gov.uk/ukpga/1985/49">surrogacy is legal</a>, but commercial (paid) surrogacy is not. At present, however, <a href="https://www.telegraph.co.uk/news/health/news/9292343/Revealed-how-more-and-more-Britons-are-paying-Indian-women-to-become-surrogate-mothers.html">Britons</a> are the largest consumers of the Indian commercial surrogacy industry. </p>
<p>Surrogacy is <a href="https://www.globalpolicyjournal.com/blog/27/11/2015/end-rent-womb-west">reported to bring in US$400m</a> every year to the Indian economy. But the Indian market has come under fire for being <a href="https://www.theguardian.com/science/blog/2017/mar/28/cross-border-surrogacy-exploiting-low-income-women-as-biological-resources">exploitative</a>. Indian surrogate mothers are typically poor, and are paid around <a href="https://www.theguardian.com/global-development/2016/apr/01/outsourcing-pregnancy-india-surrogacy-clinics-julie-bindel">£4,500</a> to carry a foetus to term. </p>
<p>The industry is also unregulated. This gives <a href="https://www.theguardian.com/global-development/2016/apr/01/outsourcing-pregnancy-india-surrogacy-clinics-julie-bindel">surrogacy clinics</a> a large amount of power and control over the process. Many surrogates are required to live in surrogacy hostels, run by clinics, <a href="https://www.bbc.com/news/magazine-24275373">for the duration of their pregnancy</a> – away from friends and family members. </p>
<h2>A change in the law</h2>
<p>India is in the process of outlawing commercial surrogacy in favour of an altruistic model, available to Indian nationals only. And surrogacy laws in the UK <a href="https://www.theguardian.com/lifeandstyle/2018/may/04/surrogacy-review-to-tackle-laws-declared-unfit-for-purpose">may also be set to change</a>. </p>
<p>The Law Commissions of England and Wales, and Scotland, recently commenced a three-year project to review and recommend improvements to surrogacy arrangements in the UK. One <a href="https://www.lawcom.gov.uk/surrogacy-laws-set-for-reform-as-law-commissions-get-government-backing/?platform=hootsuite">key area targeted for reform</a> is the way in which uncertainty in the law may be encouraging UK residents to look overseas for surrogates.</p>
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<p>It may not be enough for countries to amend their laws in isolation. Improvements of national laws are of course welcome, but a collective international response is preferable. This is because, even if the Indian bill passes – and the UK maintains its altruistic approach – this does not fix the problem. </p>
<p>Surrogacy agencies in India and elsewhere could <a href="https://theconversation.com/india-outlawed-commercial-surrogacy-clinics-are-finding-loopholes-81784">make use of loopholes</a> that exist in the law. Eggs, sperm, embryos, surrogates and intended parents could simply be moved across borders to countries where commercial surrogacy is not banned. What’s more, when one industry closes, another one can easily open elsewhere. This is the case in <a href="https://www.bioedge.org/bioethics/ukraine-a-new-surrogacy-hotspot/12607">Ukraine</a>, which is fast becoming a surrogacy hot spot now that other countries have banned the practice. </p>
<h2>Defining infertility</h2>
<p>Another factor to consider in all of this, is the <a href="https://www.telegraph.co.uk/news/2016/10/19/single-men-will-get-the-right-to-start-a-family-under-new-defini/">World Health Organisation’s</a> proposal to change the definition of infertility. This would move it away from a clinical disease-based definition – where it is viewed as a disability – to a view that includes a more social definition, recognising it as a “right to reproduce”.</p>
<p>Under the new definition, <a href="http://www.who.int/reproductivehealth/topics/infertility/definitions/en/">infertility would no longer be </a> seen as “the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse”. Rather, it would also be considered to <a href="https://www.telegraph.co.uk/news/2016/10/19/single-men-will-get-the-right-to-start-a-family-under-new-defini/">include cases when</a> “single men and women without medical issues … do not have children but want to become a parent”.</p>
<p>As yet, the proposed definition has not been <a href="http://www.health.com/infertility/infertility-definition-change">officially adopted by the WHO</a>. In fact, the WHO has stated that it will retain a clinical focus and refrain from making recommendations about <a href="http://www.who.int/reproductivehealth/topics/infertility/multiple-definitions/en/">fertility service provision</a> – even if there were to be a change to its definition. </p>
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<img alt="" src="https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/229095/original/file-20180724-194152-99euni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">India has outlawed commercial surrogacy, but clinics are finding loopholes.</span>
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<p>Hypothetically, the result of this change would mean that those who fall under the new social account of infertility could also receive access to reproductive services. On the one hand, this is a progressive move – why shouldn’t single men and women and same-sex couples receive help to become parents? </p>
<p>But on the other hand, <a href="https://www.newstatesman.com/politics/feminism/2016/10/no-single-men-do-not-have-right-reproduce">there are concerns</a> that the expanded definition <a href="https://www.huffingtonpost.co.uk/julian-vigo/the-world-health-organisa_b_12725214.html">ignores the gender dynamics</a> inherent to the provision of reproductive services. </p>
<h2>A right to a womb</h2>
<p>Any change in the law needs to recognise that it is women’s bodies alone that can perform this “service”. In the case of male gay couples, who cannot carry a foetus themselves, women’s bodies will be necessary in order to treat a couple’s infertility. This could be either through international paid surrogacy, or the domestic altruistic model.</p>
<p>If this definition does take hold, there may well be an increase in the demand for surrogacy services and the further liberalisation of surrogacy laws <a href="https://www.huffingtonpost.co.uk/julian-vigo/the-world-health-organisa_b_12725214.html">to cater for this demand</a>. Expanding access to reproductive services could lead to an increase in exploitation, health risks and the further commodification of women’s bodies. And without proper acknowledgement that it is women who will carry out the labour involved in gestating a child, a key ethical concern is neglected. </p>
<p>This is why there needs to be an <a href="https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy">international consensus on surrogacy</a> – and a joined-up approach to the law. There may well be difficulties in getting people from different places, cultures or backgrounds to agree the demand for and effects of current surrogacy practices, but surrogacy deserves a global conversation.</p><img src="https://counter.theconversation.com/content/98966/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Herjeet Marway is Chair of the Ethics Committee for Surrogacy UK. </span></em></p><p class="fine-print"><em><span>Gulzaar Barn has previously received funding from the Wellcome Trust to carry out research relating to surrogacy in India.</span></em></p>The surrogacy industry needs international regulation to stop the exploitation of women’s bodies.Herjeet Marway, Lecturer in Global Ethics, Department of Philosophy, University of BirminghamGulzaar Barn, Lecturer in Philosophy, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/838682017-09-21T00:44:51Z2017-09-21T00:44:51ZA new way to regulate surrogacy to give more certainty to all involved<figure><img src="https://images.theconversation.com/files/186486/original/file-20170918-30516-dnd6hu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>Starting a family through surrogacy is fraught with stresses and <a href="https://link.springer.com/epdf/10.1007/s11673-014-9557-9?shared_access_token=NjMBEh0QXy6I8MKSyyPm5Pe4RwlQNchNByi7wbcMAY4129fReTDQdGcq8lO9fuD3KfzhXgWaSaESwjk_2iUem9Fv0DxOKZ83n3020SoXsMWeRqFhvQqssyECrXXsnYdL9YoO6iwFWrDEb_V3oKu6nmPfDSSFc-_rlbaR37poquA%3D">uncertainties</a>.</p>
<p>For heterosexual couples it is often the last resort after a history of disappointment and even tragedy. Gay couples remain subject to <a href="https://books.google.co.nz/books?id=8kO4CAAAQBAJ&printsec=frontcover&dq=Gay+Fathers,+Their+Children,+and+the+Making+of+Kinship.+Author+Aaron+Goodfellow&hl=en&sa=X&redir_esc=y#v=onepage&q=Gay%20Fathers%2C%20Their%20Children%2C%20and%20the%20Making%20of%20Kinship.%20Author%20Aaron%20Goodfellow&f=false">discrimination and stigma</a> when it comes to planning a family. </p>
<p>Surrogates face the risk that the intended parents might opt out of the arrangement, leaving them the legal mother of a child they did not plan to raise. They are often not compensated for their service.</p>
<p>We think it is time for a <a href="http://www.palgrave.com/br/book/9781137586575">new way to regulate surrogacy</a> to provide certainty over legal parentage and protection of the surrogate’s rights.</p>
<h2>Surrogacy now</h2>
<p>In genetic surrogacy (also known as traditional or partial surrogacy), the surrogate uses her own egg and becomes pregnant through artificial insemination, usually using the intended father’s sperm. In gestational surrogacy (also called host surrogacy), the surrogate carries a couple’s embryo, or an embryo created using donor gametes, and becomes pregnant using in-vitro fertilisation techniques.</p>
<p><a href="http://www.reuters.com/article/us-india-women-surrogacy-factbox/fatcbox-which-countries-allow-commercial-surrogacy-idUSKBN1530FP">Current legislation in many countries</a> creates unnecessary risks for all parties involved in a surrogacy arrangement. Many intended parents plunge into the even riskier world of <a href="https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-891/child-rights-in-international-commercial-surrogacy">international surrogacy</a> where they encounter further obstacles to securing parental rights when they return with a baby.</p>
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<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>
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<p>In a number of jurisdictions, including New Zealand and <a href="http://www.smh.com.au/news/national/surrogate-mothers-for-mps-baby/2006/11/06/1162661615860.html">Australia</a>, the only form of surrogacy that is permitted is <a href="http://www.nzlii.org/nz/other/nzlc/pp/PP54/PP54-4_.html">altruistic (or unpaid) surrogacy</a>. Typically, intended parents are allowed to reimburse pregnancy-related expenses, but are not permitted to pay anything beyond that. </p>
<p>We think this is unfair. Surrogates deserve fair compensation and, indeed, most intended parents want to be able to compensate the surrogate for her work and the risks she undertakes. </p>
<p>Antiquated adoption laws, such as New Zealand’s <a href="http://www.legislation.govt.nz/act/public/1955/0093/35.0/DLM292661.html">Adoption Act 1955</a>, require the intended parents to adopt the baby from the surrogate. This generates tensions throughout the relationship over whether the surrogate will relinquish the baby, the intended parents will adopt it, and the social workers and Family Court will give their approval. All parties are entitled to certainty over legal parentage.</p>
<h2>The professional model</h2>
<p><a href="https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-891/child-rights-in-international-commercial-surrogacy">Commercial surrogacy</a> is an option in some jurisdictions. It relies on a contract to determine the obligations of both parties with no recourse other than the courts when something goes wrong. We think it is a mistake to regulate surrogacy according to the norms of business, which is based on the principle, “Let the buyer beware.” </p>
<p>Instead, we propose a third alternative: the professional model. It is inspired by the way the caring professions are regulated. Its unique provisions would protect the rights of surrogates, put the interests of the intended baby at the heart of the arrangement, and give intended parents certainty by recognising them as the legal parents of the baby from its birth.</p>
<p>At the centre of the model is a regulatory body similar to those of the nursing and medical professions. It would be responsible for licensing fertility clinics, maintaining a register of surrogates, determining a fair rate of compensation and ensuring compliance with a code of ethics. Registration would protect the surrogate’s rights by setting a fee that cannot be negotiated down (or up) and cannot be made contingent on compliance with the intended parents’ wishes or a successful outcome to the pregnancy. </p>
<p>The surrogate’s rights to bodily integrity and medical confidentiality cannot be negotiated away. She has the right to refuse unreasonable demands and be protected from practices that compromise her safety. For example, the regrettably common practice of transferring two or more embryos when there is no clinical justification for doing so would not be permitted. Intended parents have to understand that the surrogate retains all her rights as a pregnant woman.</p>
<p>Registration of all surrogates would also protect women from coercion. In a confidential process used to ensure that a woman is medically and psychologically fit to undertake a surrogacy, and sensitive to the ethical responsibilities she would be taking on, she would be able to disclose feeling pressured or reluctant. All the intended parents would know was that the regulatory body declined to register her.</p>
<h2>Intended parents and baby</h2>
<p>The professional model also aims to protect intended parents, who are vulnerable in a number of ways. Surrogacy is often the last remaining avenue for heterosexual couples. For gay couples, regulation could lessen discrimination when it comes to starting a family.</p>
<p>The intended parents need the compassion and understanding of their surrogate as they go through an inevitably stressful process. They have no control over the surrogate’s behaviour during the pregnancy, do not have a right to information and cannot make decisions about its course. The surrogate retains her right to bodily integrity and medical confidentiality both now and under our model. </p>
<p>They must therefore rely on the surrogate’s generosity with both information and decision making. What this means is that the surrogate should have an appreciation and understanding of the ethical significance of her role. She must be trustworthy and able to put the interests of the intended parents and the baby ahead of her own in the way that professionals do. </p>
<p>The intended baby has independent interests, principally being born full-term and healthy. The surrogate’s duties to the intended baby mean she should act in evidence-based ways under the supervision of professionals to increase the chances of that outcome. In a few tragic cases, it may not be in the intended baby’s interests to be born and the surrogate must make her decision accordingly. </p>
<h2>Professional support</h2>
<p>Under our proposed regulation of surrogacy, both parties would have access to professional support as needed, from the time that a surrogacy arrangement is contemplated until some time after the birth. </p>
<p>There will always be tensions and difficulties in a surrogacy arrangement. Most will end well, but lack of support is one reason why some end badly. The professional model greatly reduces risks through registration of surrogates, counselling before the pregnancy is established and, critically, by making help available as needed.</p><img src="https://counter.theconversation.com/content/83868/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Surrogacy is fraught with uncertainties. Proposed regulation, inspired by the way the caring professions are regulated, would protect the surrogate and provide certainty about legal parentage.Ruth Walker, Senior Lecturer in Philosophy, University of WaikatoLiezl van Zyl, Senior lecturer, Philosophy, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/692032016-11-24T00:00:43Z2016-11-24T00:00:43ZArrests and uncertainty overseas show why Australia must legalise compensated surrogacy<figure><img src="https://images.theconversation.com/files/147266/original/image-20161123-19726-1wzya5z.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A lack of regulation of surrogacy in developing countries makes it easy for exploitation to occur.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Cambodia is the latest country in our region to ban commercial surrogacy. As happened when India, Thailand and Nepal introduced such bans, dozens of Australians are now extremely anxious because they have no idea what is going to happen to their babies who have recently been born or are on their way.</p>
<p>A lack of regulation of surrogacy in these countries makes it easy for exploitation to occur. So, it is simpler for them to just ban the practice, rather than devise comprehensive laws to adequately protect all parties involved in a surrogacy arrangement.</p>
<p>But the reasons for banning compensated surrogacy in developing countries don’t apply in Australia. We already have much of the legal infrastructure needed to ensure that compensated surrogacy can be undertaken in a way that is not exploitative and protects the interests of everyone involved – especially children. And we have world-class medical skills and health services to ensure surrogacy is performed to the highest standards.</p>
<h2>Why are couples looking to overseas?</h2>
<p>Australian officials are <a href="http://www.smh.com.au/world/australian-and-cambodian-officials-set-for-meeting-over-surrogacy-crisis-20161121-gsu37y.html">hurriedly meeting</a> with Cambodian authorities to try to negotiate transitional arrangements so parents can bring their children home. Meanwhile, Australian woman Tammy Davis-Charles is <a href="http://www.abc.net.au/news/2016-11-21/australian-woman-charged-over-illegal-surrogacy-clinic-cambodia/8042708">facing charges</a> relating to her running a surrogacy clinic in that country.</p>
<p>With <a href="http://www.smh.com.au/nsw/australian-babies-and-parents-stranded-in-nepal-after-commercial-surrogacy-ban-20151005-gk19bf.html">so many stories</a> of things going horribly wrong with overseas surrogacy arrangements, why are Australians continuing to go to these countries to start their families? Surely they should realise how risky it is to pursue surrogacy in countries that have no laws protecting the children born via surrogacy, the surrogate, or the intended parents?</p>
<p>For some, the urge to have a child is clearly so strong that they will go to almost any length to start their family. This includes throwing themselves into the often unsavoury global commercial surrogacy market.</p>
<p>Couples undertaking compensated surrogacy generally fall into one of two groups:</p>
<ul>
<li><p>infertile heterosexual couples who have been doing IVF for years and have finally given up on ever conceiving a child in this way; or</p></li>
<li><p>gay couples, who can’t find a woman willing to donate eggs and another willing to carry a child for them to receive only reimbursement of their out-of-pocket expenses for the risk and effort they undertake.</p></li>
</ul>
<p>Given all Australian states and territories ban compensated surrogacy, going overseas is the only option for these couples. </p>
<p>The two safest countries in which to undertake surrogacy – those with the best laws and healthcare systems – are Ukraine and parts of the US. However, Ukraine discriminates against gay couples, offering surrogacy services to married heterosexual couples only. And the cost of surrogacy in the US is beyond the reach of most Australian couples. </p>
<p>This leaves only developing countries closer to home. With Cambodia closing its doors to surrogacy, <a href="http://www.sensiblesurrogacy.com/surrogacy-in-cambodia/">Laos</a> will possibly become the next destination for these reproductive services. But if the best predictor of future behaviour is past behaviour, it will only be a matter of time before Laos announces similar bans.</p>
<h2>Issues overseas should prompt Australian action</h2>
<p>Children born overseas via surrogacy can experience short- and long-term problems. In the short term, they may have difficulties <a href="http://www.abc.net.au/news/2014-08-19/rights-of-surrogate-children-born-overseas/5654602">getting a visa</a> or Australian citizenship. In the long term, they may struggle with <a href="https://www.routledge.com/Surrogacy-Law-and-Human-Rights/Gerber-OByrne/p/book/9781472451248">identity issues</a>. </p>
<p>One lesson we have learned from adoption is that many children have a strong urge to know their genetic origins. The lack of regulation and record-keeping in developing countries makes it virtually impossible for a child born via surrogacy to access information about their egg donor. </p>
<p>Contrast this with Australia. For many years, it has maintained central registries of all sperm and egg donors, which children of such donors can access when they turn 18.</p>
<p>The lack of regulation in developing countries also makes it easy for surrogates to be exploited. Again, this can be avoided in Australia, with the enactment of laws to protect surrogates. These could include, for example:</p>
<ul>
<li><p>compulsory psychological assessment of both surrogates and intended parents;</p></li>
<li><p>evidence of free and informed consent by surrogates given only after mandatory counselling and legal advice;</p></li>
<li><p>approval of all compensated surrogacy agreements by a regulatory body such as the <a href="https://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/perinatal-reproductive/assisted-reproduction/patient-review-panel/">Patient Review Panel</a> in Victoria, which already approves altruistic surrogacy arrangements in that state;</p></li>
<li><p>setting minimum and maximum rates of compensation for surrogates that reflect the risk and effort involved in carrying a child for another; and</p></li>
<li><p>surrogates retaining the right to make all decisions relating to their health and that of the foetus they will carry. </p></li>
</ul>
<p>But a worrying pattern is emerging in Australia: we prefer to <a href="http://www.smh.com.au/comment/leaving-burden-of-radicals-migrants-to-others-makes-us-a-poor-global-citizen-20150630-gi21qb.html">export our policy problems</a> rather than deal with them at home. This extends to asylum seekers whom we detain on Nauru and Manus Island, and dual citizens convicted of terrorism offences overseas whom we strip of their citizenship and block from returning to Australia. </p>
<p>To this list, we can add couples with fertility problems. </p>
<p>Australia is a wealthy country with superior health and legal systems, and we should provide all modern reproductive services in a safe and regulated environment that protects the human rights of all participants.</p><img src="https://counter.theconversation.com/content/69203/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paula Gerber does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The reasons for banning compensated surrogacy in developing countries don’t apply in Australia.Paula Gerber, Professor of Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/671322016-11-18T03:34:09Z2016-11-18T03:34:09ZThe next frontier in reproductive tourism? Genetic modification<figure><img src="https://images.theconversation.com/files/144124/original/image-20161101-24460-1pylff6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Human oocyte in vitro fertilization.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/zeissmicro/27771482282">Ziess Microscopy/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The birth of the first baby born using a technique <a href="https://www.newscientist.com/article/2107219-exclusive-worlds-first-baby-born-with-new-3-parent-technique">called mitochondrial replacement, which uses DNA from three people</a> to “correct” an inherited genetic mutation, was announced in September 2016. </p>
<p>Mitochondrial replacement or donation allows women who carry mitochondrial diseases to avoid passing them on to their child. These diseases can range from mild to life-threatening. No therapies exist and only a few drugs are available to treat them.</p>
<p>There are no international rules regulating this technique. Just one country, the United Kingdom, explicitly <a href="http://www.legislation.gov.uk/uksi/2015/572/contents/made">regulates the procedure</a>. It’s a similar situation with other assisted reproductive techniques. Some countries permit these techniques and others don’t. </p>
<p>I study the intended and unintended consequences of regulating, prohibiting or authorizing the use of new technologies. One of these unintended consequences is “medical tourism,” where people travel from their home countries to places where practices such as commercial surrogacy or embryo selection are allowed. </p>
<p>Medical tourism for assisted reproductive technologies raises a host of legal and ethical questions. While new reproductive technologies, like mitochondrial replacement, promise to bring significant benefits, the absence of regulations means that some of these questions, including those related to safety and risks are unanswered, even as people are starting to use them. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/144123/original/image-20161101-14771-1fuj1bn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Mitochondria power our cells.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-425512399/stock-photo-mitochondrium-3d-rendering-microbiology-illustration.html?src=TrjF1GC8FGuEZ0mQ-utOwA-3-61">Mitochondrium image via www.shutterstock.com.</a></span>
</figcaption>
</figure>
<h2>How does mitochondrial replacement work?</h2>
<p>We each inherit our mitochondria, which provide the energy that our cells need to function and the tiny fraction of DNA contained in it, only from our mothers. Some of that mitochondrial DNA might be defective, carrying mutations or errors that might lead to mitochondrial diseases.</p>
<p>The mother of the baby born using this technique carried one of these diseases. The disease, known as <a href="https://ghr.nlm.nih.gov/condition/leigh-syndrome#genes">Leigh Syndrome</a>, is a neurological disorder that typically leads to death during childhood. Before having this baby, the couple had two children who died as a result of the disease. </p>
<p>Mitochondrial replacement is done in a lab, as part of in vitro fertilization. It works by “substituting” the defective mitochondria of the mother’s egg with healthy mitochondria obtained from a donor. The child is genetically related to the mother, but has the donor’s mitochondrial DNA. </p>
<p>It involves three germ cells: an egg from the mother, an egg from a healthy donor and the sperm from the father. While the term “three-parent” child is often used in news <a href="http://www.nytimes.com/2016/09/28/health/birth-of-3-parent-baby-a-success-for-controversial-procedure.html?_r=0">stories</a>, it is a highly controversial one. </p>
<p>To some, the tiny fraction of DNA contained in a mitochondria provided by a donor is not sufficient to make the donor a “second mother.” The U.K., the only country that has regulated the technique, takes this position. Ultimately, the DNA replaced is a tiny fraction of a person’s genes, and it is unrelated to the characteristics that we associate with genetic kinship.</p>
<p>There is some discussion as to whether mitochondrial replacement is a so-called “germ line modification,” a genetic modification that can be inherited. Many <a href="http://www.nature.com/news/where-in-the-world-could-the-first-crispr-baby-be-born-1.18542">countries</a>, including the U.K., have either banned or taken a serious stance on technologies that could alter germ cells and cause inherited changes that can affect future generations. But a great number of countries, including Japan and India, have ambiguous or unenforceable regulations about germline modification.</p>
<p>Mitochondrial replacement results in a germline change, but that change is passed to future generations only if the child is a girl. She would pass the donor’s mitochondrial DNA to her offspring, and in turn her female descendants will pass it to their children. If the child is a boy, he wouldn’t pass the mitochondrial DNA on to his offspring. </p>
<p>Because the mitochondrial modification is only heritable in girls, the U.S. National Academies of Science recently recommended that use of this technique be <a href="https://www.nationalacademies.org/hmd/Reports/2016/Mitochondrial-Replacement-Techniques.aspx">limited to male embryos</a>, in which the change is not inheritable. The U.K. considered but then rejected this approach.</p>
<h2>A thorny ethical and regulatory debate</h2>
<p>In the U.S., the FDA claimed jurisdiction to regulate mitochondrial replacement but then halted further discussions. A rider included in the <a href="https://www.congress.gov/bill/114th-congress/house-bill/2029/text">2016 Congressional Appropriations Act</a> precludes the FDA from considering mitochondrial replacement.</p>
<p>While the technique has been given the green light in the U.K., the nation’s Human Fertilisation and Embryology Authority is gathering more <a href="http://www.hfea.gov.uk/10363.html">safety-related information</a> before granting the first licenses for mitochondrial replacement to clinics.</p>
<p>Experts have predicted that once the authority starts granting authorization, people seeking mitochondrial replacement would go to the U.K. </p>
<p>At the moment, with no global standard dictating the use of mitochondrial replacement, couples (and experts willing to use these technologies) are going to countries where the procedure is allowed. </p>
<p>This has happened with other technologies such as embryo selection and commercial surrogacy, with patients traveling abroad to seek out assisted reproduction services or technologies that are either prohibited, unavailable, of lower quality or more expensive in their own countries.</p>
<p>The <a href="https://www.newscientist.com/article/2107219-exclusive-worlds-first-baby-born-with-new-3-parent-technique/">first documented case</a> of successful mitochondrial replacement involved U.S. physicians assisting a Jordanian couple in Mexico. Further reports of the use of mitochondrial replacement in <a href="https://www.newscientist.com/article/2108549-exclusive-3-parent-baby-method-already-used-for-infertility/">Ukraine</a> and <a href="http://www.nature.com/news/reports-of-three-parent-babies-multiply-1.20849">China</a> have followed. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/146461/original/image-20161117-18108-1di8hjo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In this Nov. 3, 2015 photo, a newborn baby is transferred to an ambulance at the Akanksha Clinic, one of the most organized clinics in the surrogacy business, in Anand, India.</span>
<span class="attribution"><span class="source">Allison Joyce/AP</span></span>
</figcaption>
</figure>
<p>The increasing trend of medical tourism has been followed by sporadic <a href="http://www.telegraph.co.uk/news/2016/04/14/baby-gammy-was-not-abandoned-in-thailand-court-rules/">scandals</a> and waves of tighter regulations in countries such as <a href="http://www.cnn.com/2016/09/08/asia/india-surrogacy-laws/">India</a>, <a href="http://www.nytimes.com/2016/05/03/world/asia/nepal-bans-surrogacy-leaving-couples-with-few-low-cost-options.html?_r=0">Nepal</a> and <a href="http://www.bbc.com/news/world-asia-31546717">Thailand</a>, which have been leading destinations of couples seeking assisted reproduction services.</p>
<p>Intended parents and children born with the help of assisted reproduction outside of their home countries have faced problems related to family ties, citizenship and their relationship with donors – especially with the use of <a href="http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1420&context=bjil">commercial surrogacy</a>.</p>
<p>Mitochondrial replacement and new gene editing technologies add further questions related to the safety and long-term effects of these procedures.</p>
<h2>Gene modification complicates reproductive tourism</h2>
<p>Mitochondrial replacement and technologies such as gene-editing with the use of <a href="http://www.nytimes.com/2015/12/18/opinion/a-pause-to-weigh-risks-of-gene-editing.html">CRISPR-CAS9</a> that create germline modifications are relatively new. Many of the legal and ethical questions they raise have yet to be answered.</p>
<p>What if the children born as a result of these techniques suffer unknown adverse effects? And could these technologies affect the way in which we think about identity, kinship and family ties in general? One technique to replace mutated mitochondria involves the creation of embryos that will be later disposed. How should the use and disposal of embryos be regulated? What about the interests of the egg donors? Should they be paid? </p>
<p>Some of these problems could be avoided through a solid regulatory system in the U.S. and other countries. But as long as patients continue to seek medical treatments in “havens” for ethically dubious or risky procedures, many of these problems will persist. </p>
<p>Regulatory authorities around the world are <a href="http://nationalacademies.org/gene-editing/consensus-study/index.htm">debating</a> how to better regulate these genetic modification technologies. Governments need to start considering not only the ethical and safety effects of their choices but also how these choices drive medical tourism.</p><img src="https://counter.theconversation.com/content/67132/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rosa Castro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Medical tourism for assisted reproductive technologies raises a host of legal and ethical questions.Rosa Castro, Postdoctoral Associate in Science and Society, Duke UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/551262016-02-24T01:36:31Z2016-02-24T01:36:31ZLegalising commercial surrogacy in Australia won’t stop people going overseas<figure><img src="https://images.theconversation.com/files/112467/original/image-20160223-16464-n908w2.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Legalising commercial surrogacy would just relocate the same problem. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/jessgarduno/7540539484/">Jess G/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>A <a href="https://theconversation.com/making-commercial-surrogacy-illegal-only-makes-aspiring-parents-go-elsewhere-54382">recent Conversation article</a> that said our current laws prohibiting commercial surrogacy are not working was correct. Some states outlaw overseas commercial surrogacy, but people are working around the laws or simply ignoring them. </p>
<p>There’s no evidence, however, to say legalising commercial surrogacy here would stop people from going overseas where it’s probably cheaper and there may be less regulation.</p>
<h2>Love isn’t all you need</h2>
<p>Proponents of commercial surrogacy argue it doesn’t matter how a child is conceived as long as it is loved. </p>
<p>However, this view <a href="https://theconversation.com/donor-conception-secrecy-and-the-search-for-information-44000">contradicts trends</a> in public policy internationally and a large and growing body of research into the experiences of <a href="http://www.publishing.monash.edu/books/mb-9781921867866.html">adoptees</a> and <a href="http://eprints.hud.ac.uk/14477/">donor-conceived</a> people. </p>
<p>Birth circumstances, conception, secrecy and separation from family have life-long implications for identity, well-being, relationships and mental health. A truly child-centred approach cannot disregard this.</p>
<h2>Relocating the problem</h2>
<p>It is assumed children born of commercial surrogacy in Australia will have access to complete and accurate information, but there are no laws that compel parents to tell their children <a href="https://aifs.gov.au/publications/families-policy-and-law/9-secrecy-family-relationships-and-welfare-children-bornas%20with%20donor-conception%20and%20adoption">about their origins</a> in the case of adoption or donor conception.</p>
<p>Overseas commercial arrangements can be expensive, especially in the United States, a first world country. Conditions in many countries are not regulated, lack transparency, are exploitative and do not require standards in record keeping – the release of information (if it exists) is arbitrary. Overseas surrogacy is financially and ethically risky for everybody. But legalising commercial surrogacy in Australia won’t fix this. </p>
<p>Making surrogacy affordable and competitive against cheap Asian options shifts the potential for exploitation to Australian surrogates rather than addressing it. The very low rates of altruistic surrogacy indicate that unless motivated by a deep personal connection between surrogate and commissioning parents, most Australian women consider the risks, inconvenience and potential emotional and health complications of surrogacy to be too much. </p>
<p>Educated, skilled and employed women are unlikely to subject themselves to the demands and risks of pregnancy to fulfil the aspirations of others. This leaves the likely Australian candidates for commercial arrangements as less educated women with fewer skills and employment prospects. While Australia is not a developing country, <a href="https://aifs.gov.au/publications/families-policy-and-law/8-use-surrogacy-australians-implications-policy-and-law-reform">differences in wealth</a> and power create a dynamic ripe for exploitation. </p>
<p>Properly calculating the real costs for surrogates while ensuring profit for private legal and medical practitioners will not make costs cheaper than Asia or the Americas. </p>
<p>Carrying a child to term is a nine-month, 24-hour-a-day undertaking. It brings discomfort, inconvenience and health risks, and precludes other activities. </p>
<p>Then, of course, there are costs before pregnancy and after birth. Not covering all costs, or costed at less than appropriate rates, will exploit the most vulnerable and powerless in our society. Clinics might turn to importing poor women from overseas as we see <a href="http://www.smh.com.au/national/ivf-treatment-south-african-agency-flies-egg-donors-to-australia-20160208-gmo8qn.html">egg donors coming into the country</a> now.</p>
<p>The current legislative prohibitions on commercial surrogacy are not working, but there is no evidence that commercialising surrogacy in Australia will solve overseas exploitation. Many commissioning parents in countries where commercial surrogacy exists still go overseas.</p>
<p>Commercialisation will not prevent inappropriate people from accessing children, as in the <a href="https://theconversation.com/baby-gammy-case-reveals-murky-side-of-commercial-surrogacy-30081">Baby Gammy</a> case, because there is little focus on the well-being of the children in any legislation or in national and international discussions. The voices of “consumers” dominate these debates.</p>
<p>Legalising commercial surrogacy in Australia will not necessarily prevent the exploitation of women nor ensure the well-being of children under <a href="http://link.springer.com/article/10.1007%2Fs11673-014-9557-9">proposed changes to the laws</a>. It will simply change the site at which the exploitation takes place.</p><img src="https://counter.theconversation.com/content/55126/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s no evidence to say legalising commercial surrogacy here would stop people from going overseas where it’s probably cheaper and there may be less regulation.Denise Cuthbert, Dean, School of Graduate Research, RMIT UniversityPatricia Fronek, Senior Lecturer, School of Human Services and Social Work, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/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.