Commercial Surrogacy in Australia: the Benefits of Harm Minimisation Through Legalisation

Feature

Surrogate /sʌrəɡət/

A substitute, or someone or something that represents another person or thing in their stead.[1]

The status quo

There is much controversy around surrogacy in Australia. We have what is known as ‘altruistic surrogacy,’ whereby a woman cannot be compensated beyond reasonable expenses for gestating a baby intended for someone else. Even the name puts our moral intuitions at ease. Altruistic. Contrast this with the term ‘commercial surrogacy’, which makes many of us instinctively recoil. So what is it about commercial surrogacy, where a woman is paid to gestate a baby, that we take issue with?

The most common type of surrogacy is gestational surrogacy, wherein the commissioning parent(s) uses IVF to create an embryo from their own or donor gametes and transfer it into the uterus of the gestational surrogate. With this method, the surrogate mother does not provide any genetic material. People that seek out surrogacy commonly include infertile heterosexual couples and homosexual couples desiring children of their own. The demand for surrogacy has heightened in recent years following changes to child protection policy, which lead to drastic falls in the number of children for adoption and stricter criteria implemented by overseas countries regarding the age and family types who can adopt. For example, none of Australia’s current international adoption agreements allow same-sex couples to adopt.[2] The status quo in Australia (except the Northern Territory) only allows altruistic surrogacy, where one must not compensate the surrogate mother beyond out-of-pocket expenses like medical cost, travel, and time off work. The options are further limited by the fact that surrogacy is illegal for single people and same-sex couples in certain states like Western Australia and South Australia. The increasing number of roadblocks to accessing surrogacy has left many desperate couples resorting to offshore commercial surrogacy. But even this option is becoming more restricted now that Thailand, Cambodia, India, and Nepal have banned foreigners from commercial surrogacy following the notorious “Gammy scandal” in 2014.[3]

Objections to commercial surrogacy

Commercial surrogacy commonly encounters several types of objections. Some think it is inescapably a form of exploitation of women, reducing the surrogate to her base reproductive capability, and effectively turning her into a walking incubator. Certainly, the idea of a class of ‘breeders’ is eerily reminiscent of Margaret Atwood’s classic novel The Handmaid’s Tale, which could be interpreted as a cautionary tale warning against the harms of surrogacy. In a similar vein, some argue that pregnancy belongs in a special moral realm, and that by bringing market forces into the arena we degrade the intrinsic value of creating life. Maybe there are some things in life which simply should not come with a price tag.

Commercial surrogacy also raises objections that intersect with other ethical and societal issues. Some assume that a child is best raised with both a father and a mother figure, and therefore believe that enabling same-sex couples to access surrogacy would be harmful for children. However, existing Australian law allows same-sex couples to adopt, and it is difficult to see why, on the grounds of concern for the child, surrogacy would be different. Furthermore, the assumption that same-sex parenting is harmful to children is not borne-out in the evidence,[4] and so we do not see this as a relevant argument against commercial surrogacy.

Another objection to commercial surrogacy is that it would change the nature of the family unit by involving the surrogate as a third parent figure. But these changes to the more ‘traditional’ family unit are already common in society. Take for example adoption, where both biological and adoptive parents may be involved in the child’s life. It is also possible for women to become single parents through the help of donor sperm and IVF. In neither case has disruption of the ‘traditional’ family unit been viewed as reason for prohibition, and it would be inconsistent ban commercial surrogacy on these grounds.

These ethical objections may be why Australia has made commercial surrogacy illegal. But given that no one has ever been prosecuted on these grounds,[5] the legal threat is a poor deterrence.[6] For people desperate to have a baby of their own, but who are otherwise unable to, the risks of commissioning illegal surrogacy can pale in comparison to the intoxicating notion of holding a flesh-and-blood child.

Undesirable consequences

The supply of altruistic surrogates in Australia falls well short of demand, driving Australian couples to search for surrogates overseas. Most are travelling to countries like India or Thailand where the process was until recently legal, cheaper, and poorly regulated. It is this scene that has become inextricably associated with commercial surrogacy. The transnational surrogacy market operating out of developing countries has been widely criticised in popular media,[7,8] and rightly so. Women who become surrogates in these countries tend to be poorly educated, have low incomes, and may even be coerced into surrogacy by family members or intermediaries seeking to turn a profit.[9] Often, very little of the money actually reaches the surrogate herself. There are some surrogacy agencies which effectively imprison surrogates, controlling their diet, sleep, sexual activity, and contact with the outside world. All this is done under the guise of antenatal care, which is in truth scant and inadequate.[9] It is difficult to see how informed consent could truly be said to exist in this environment.[10]

Even if the surrogacy results in a liveborn child, the challenges do not necessarily resolve. The lack of enforceable contracts between commissioning parents and surrogates, combined with issues of legal citizenship and parentage, can create a veritable labyrinth if conflict arises or if commissioning parents change their minds and no longer want the child. Case examples of transnational surrogacy debacles abound in the media. For example, commissioning parents have divorced before the surrogacy was complete, leaving the child with an uncertain future.[11] Another case saw a baby left stranded with no identity or legal papers for as long as two years.[11] Fortunately, Australian laws allow a child born from an international surrogacy arrangement to be given Australian citizenship, provided that at least one parent is an Australia citizen and a parent-child relationship is proven with DNA testing, although other measures of ‘parent’ can be used. If ineligible, commissioning parents may be required to apply for a permanent visa or an adoption visa. Despite being lengthy and difficult for parents to navigate, these processes and laws minimise the risk of children born internationally via surrogacy being left stateless.[12,13]

Australia’s current approach is to prohibit commercial surrogacy because it is regarded as immoral, but is this policy helping the situation or making it worse? At present, Australians for whom altruistic surrogacy is simply not feasible appear to be turning to transnational surrogacy. In 2011, only 21 births by altruistic surgery were recorded in Australia.[14] In the same year, it is estimated over 270 babies were born via transnational commercial surrogacy arrangements.[6] Banning commercial surrogacy domestically has created a transnational black market of commercial surrogacy that does not protect the best interests of the surrogate, the child, or the intended parents; the process is expensive, risky, poorly regulated, and is largely a profit-making exercise for overseas surrogacy agencies. Despite being designed to prevent exploitation, our current system might in fact ironically be encouraging it.

Harm minimisation

Simply prohibiting a behaviour on the basis of its supposed immorality is not necessarily an effective strategy. Data shows that in Australia and overseas, drug use and morbidity increased under policies of prohibition, and decreased with decriminalization and regulation.[15] Harm minimisation is a principle we see being used more often in Australia’s approach to illicit drug use and prostitution. It recognises that prohibition can be counterproductive in achieving its overarching goal of improving the lives of Australian citizens. Instead, our laws regulate the potentially damaging behaviour or substance in a way that realistically protects the people involved. So why not apply a similar harm-minimization approach to surrogacy? Given that our prohibitive model is failing to protect Australian couples seeking surrogacy, and instead funnelling business into exploitative transnational surrogacy agencies, we should instead look to harm minimisation to guide how we approach the issue at hand. This could be best accomplished through the decriminalisation of commercial surrogacy in Australia. Decriminalisation and the establishment of a strictly regulated system would better enable us to protect the interests and rights of the intending parents, surrogates, and children. But what should these regulations actually look like?

A suggested solution

Ideally, a reformed system in Australia would be carried out by a centralised institution that could oversee the entire process, from psychological screening and matching, to counselling, and support services. This centralised institution could be national, state-run or not-for-profit. Strict criteria of eligibility could then more easily be applied, screening out individuals who are unsuitable for surrogacy arrangements due to medical, social, or psychological reasons. This assessment could draw on existing assessment processes for adoption.[16]

The relationship between the surrogate and intending couple appears to be the most crucial factor affecting satisfaction with the experience and the likelihood of conflict regarding parentage of the baby.[17] In fact, some studies suggest the most common reason for a surrogate to want to keep the baby is being unsure of the commissioning couples ability to provide adequate care.[17] With this in mind, matching surrogates and intended parents with similar values and desired levels of contact, as well as facilitating educated discussion about the possibilities of chromosomal abnormalities or multifetal gestation, would also mitigate conflict.  Antenatal and postnatal support, including mental health checks, could also be provided through this system.

The exclusion of profiting intermediaries increases the likelihood that the interests of all parties would be equally considered, rather than sacrificing the surrogate’s health and experience in favour of maximising profits. Moreover, any surrogacy arrangements would still be constrained by Australia’s existing common law and family law. This ensures that the surrogate maintains all the decision-making powers throughout the pregnancy, including her rights to access termination of pregnancy and to bodily autonomy.

In terms of the appropriate compensation, it seems prudent to set both a minimum and a maximum limit. Pregnancy is unavoidably risky for a woman, and gestating a growing fetus is no easy task. Why should it not, like many other jobs, receive recompense proportionate to the task? Moreover, pregnancy is intrinsically care-based ‘women’s work’, which is still insidiously undervalued even in modern times. Conversely, to titrate the price of surrogacy to the intensity of a commissioning couple’s desire for a child is hardly ethical. The US can shed light on what prices may look like in an uncapped surrogacy market; the estimated reimbursement for surrogates advertised by leading US agency Circle Surrogacy, not including medical or otherwise associated expenses, is US$30,000.[18] Most couples experiencing infertility would struggle to pay this price, which does not include medical and legal costs. The aim of setting both minimum and maximum limits on a surrogate’s compensation is to strike a balance between the interests of the surrogate and the commissioning parents – or more simply put, ensuring fair pay for fair work.

Furthermore, a centralised agency would also offer benefits for children born from surrogacy arrangements. There would exist a database through which children could later in life track down their surrogates should they choose to, just as adopted children can request information regarding their birth origins after turning 18.

The laws regarding surrogacy should be standardised across all Australian states and territories. At present, the laws are fractured and discordant, diverging on points including whether same-sex couples should be eligible to be intended parents, the legality of advertisement for surrogacy, as well as that of seeking overseas surrogates. The murky legalities of surrogacy make it confusing for surrogates without deterring commissioning parents; if they are willing to pay tens of thousands of dollars for surrogacy, they would probably be happy to travel to states with more favourable laws.[6]

Challenges of decriminalisation of commercial surrogacy

One might argue that by decriminalising commercial surrogacy in Australia, we simply shift the burden of exploitation from overseas to our own shores. The concern is that commercial surrogates will be uneducated and disempowered, and have little informed choice in the matter. If we assume that the demographic of paid surrogates in Australia would resemble that of the US, then this concern does not appear to be relevant.[17, 19] Small studies of commercial surrogates in the US have suggested the while surrogates do tend to have lower incomes and less education than commissioning parents, they are generally not of a vulnerable population. In one study, most had gone to college, or at least finished high school, were from middle income earning families, and were in long-term relationships.[17,20] Furthermore, their primary motivation was not the money, but rather to help a couple start their families. While self-report studies do have limitations, perhaps we are too quick to assign altruistic and commercial surrogates into two camps: those who are doing it purely for selfless reasons and those who are doing it for money.

The move may also be politically unpopular, with possible public resistance making the implementation slow and difficult. Moreover, creating a system which successfully protects commissioning parents, surrogates, and children born from surrogate arrangements would be a time-consuming and expensive exercise, fraught with pitfalls. Unless it is well-designed, decriminalising commercial surrogacy could perpetuate the very consequences it was designed to mitigate.

Conclusion

Our approach is not to judge the morality of surrogacy, neither promoting or undermining its value as a reproductive option relative to other methods such as adoption. The problem is a thorny and possibly intractable one, and requires careful consideration of racial politics, gender and income inequality, and human rights. Even in a moral grey zone, however, there are things which are arguably more morally reprehensible than others. Australian couples are resorting to the unregulated and deeply unethical commercial surrogacy market in developing countries, as a result of the failure of our current system. Working towards a safer, more regulated model of surrogacy should be on the Australian and international agenda.

Emily Feng-Gu and Keyur Doolabh

Emily is an enthusiastic fourth year medical student at Monash University. She is completing a Diploma of Liberal Arts (Philosophy), and hopes to complete a Bachelor of Medical Science next year in her area of interest: bioethics. In her spare moments, she can be found with a coffee in one hand and a book in the other.

Keyur is a medical student with an interest in philosophy. He enjoys writing, and is particularly interested in poverty, climate change and animal welfare.

Acknowledgements

The authors would like to acknowledge the contribution of ideas and research from their fellow medical students, Su Ern Poh and Eli Ivey.

Photo credit

http://maxpixel.freegreatpicture.com/Pregnant-Pregnancy-Pregnant-Woman-M-Mother-2640994

https://www.pexels.com/photo/pregnancy-pregnant-motherboard-parenthoof-57529/

http://www.publicdomainpictures.net/view-image.php?image=54223&picture=man-holding-newborn

Conflicts of interest:

None declared

Correspondance

keyurd12@gmail.com

References

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2. Australian Institute of Health and Welfare. Adoptions Australia 2011-12. Canberra: AIHW; 2012. Contract No.: CWS 42.

3. Baby Gammy case reveals murky side of commercial surrogacy [Internet]. The Conversation. 2014 [cited 1 October 2017]. Available from: https://theconversation.com/baby-gammy-case-reveals-murky-side-of-commercial-surrogacy-30081

4. Crouch S, Waters E, McNair R, Power J, Davis E. Parent-reported measures of child health and wellbeing in same-sex parent families: a cross-sectional survey. BMC Public Health. 2014;14(1).

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12. Fact sheet – International surrogacy arrangements [Internet]. Border.gov.au. [cited 1 October 2017]. Available from: http://www.border.gov.au/about/corporate/information/fact-sheets/36a-surrogacy#offshore

13. Birth, adoption and surrogacy [Internet]. Smartraveller.gov.au. [cited 1 October 2017]. Available from: http://smartraveller.gov.au/guide/all-travellers/birth-death-marriage/pages/birth-adoption-and-surrogacy.aspx

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16. Review of the Adoption Act 1984. Melbourne: Victorian Law Reform Commission; 2015.

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