Should the Surrogacy Laws Be Changed?

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Surrogacy laws have been in the media spotlight recently after the well-publicised case where a WA couple left their Down syndrome son with his surrogate mother in Thailand, and brought his healthy twin sister back to Australia.

The controversy surrounding the case, and the news of the father’s previous history of sexual offences against children, have sparked debate in Australia and the tightening of surrogacy laws in Thailand.

What does the law say about surrogacy in Australia?

Commercial surrogacy, that is paying someone to be a surrogate mother, is illegal in Australia.

Intending parents are allowed to cover their surrogate’s medical expenses, but no more than that or they risk breaking the law.

This means that for surrogacy to take place, it has to be done purely altruistically.

Altruistic surrogacy is legal, but it is subject to certain provisions in different states.

In WA and South Australia, altruistic surrogacy can only take place for heterosexual couples.

Gay couples and single people aren’t allowed to use a surrogate.

In all other states, altruistic surrogacy is legal for gay couples and singles.

The surrogacy laws in Australia have been criticised for a number of years as being overly restrictive and outdated.

Legislation criminalising commercial surrogacy was first introduced in Victoria in 1986, and numerous enquiries into the legislation have taken place since then.

One of the main problems for people wanting to engage in altruistic surrogacy in Australia is the fact that Medicare refuses to allow couples to claim for surrogacy-related IVF treatments.

This means that it can cost couples around $12,000 – $18,000 to use a surrogate in Australia, making it out of reach for many couples.

Overseas commercial surrogacy can seem like the only resort for couples who are desperate for a child.

Why is overseas surrogacy a problem?

The difficulty finding an altruistic surrogate in Australia has led to many couples going overseas to countries where commercial surrogacy is legal.

Unfortunately, there are a number of potential issues that can arise with overseas surrogates, including exploitation of surrogate mothers and legal issues around the parentage of the babies.

According to the Australian newspaper, there have been reported incidents of overseas surrogate mothers being forced to have multiple caesarean births and being left to die of complications, as well as stories of poor and often illiterate women being harassed and kept imprisoned by middlemen.

Many believe that legalising commercial surrogacy in Australia would make it easier to enforce regulations and to protect both surrogate mothers and the parents, as well as the rights of any children born through surrogacy.

Currently, children born to overseas surrogates are considered to be on shaky legal ground with their parents, and they have no legal rights to have access to information about their surrogates.

Overseas surrogacy is open to anybody, which means that there is the potential for sex offenders and paedophiles to become parents.

With no regulations as to who can become involved in surrogacy, it is very difficult to prevent convicted child abusers from gaining access to young children in this way.

There have also been a number of reported incidents of surrogates being exploited, or left to care for children who were the wrong gender, or who had disabilities and no legal safeguards in place to protect them.

According to a report in the Australian newspaper, the two top family jaw judges in Australia have requested a change in the surrogacy laws to help protect women and children who have been involved in the surrogacy process.

What are the rights of children born to surrogate parents overseas?

Children who have been born to overseas surrogates can face difficulties from a legal perspective.

The lack of legal transfer of parentage from their birth mother to their biological parents means that they can be on tenuous legal ground and have an ambiguous legal relationship with their parents in Australia.

If they have been abandoned by their biological parents and left in the care of their birth mother this can lead to further legal confusion, as in the case of baby Gammy who was left with his Thai surrogate mother even though he was not biologically related to her.

Children who are born to international surrogates have no systemised way of finding out their parentage later in life.

It is felt that this is an unfair situation for the children, who many believe have a right to know who their biological and/or birth parents are.

As there are no background checks conducted on the parents of surrogates born overseas, children can potentially end up in the care of unfit parents.

It is believed that changes to the law are necessary to protect the children born to surrogates and the surrogate mothers as well as the parents.

What changes have been suggested?

Along with the suggested lifting of the surrogacy ban in Australia, it has been suggested that it should be made illegal to go overseas for surrogacy.

It is not certain however whether banning overseas surrogacy would have a significant impact on the number of children born overseas, without accompanying changes in local law to make surrogacy more accessible to Australian parents.

Thailand has responded to the controversy surrounding recent events by banning foreign surrogacy altogether.

Unfortunately, this has meant that a large number of Australian parents who currently have pregnant surrogates in Thailand are in limbo and are facing uncertainty as to whether they will be able to take their babies back to Australia.

Since the military announced that it was cracking down on surrogacy laws, three couples have been able to leave Thailand with their babies and there are an estimated 150 Australian couples with surrogacy arrangements already in place.

The Australian government is believed to have requested transitional arrangements from the Thai military to cover the couples who have existing surrogates.

With a number of surrogacy advocacy organisations calling for change to the laws and an end to criminalisation of commercial surrogacy, it will be interesting to see whether or not the legislation changes in the near future.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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