A government report has supported recent calls to ban commercial surrogacy across Australia. The Senate committee supports altruistic surrogacy, but not its commercial equivalent.
While the committee was firm on domestic matters, international surrogacy posed more of a problem. The committee argued that Australia is powerless to stop the approximate 250 children born from commercial surrogacy that enter the country every year, partly because of intended parents’ strong desires to bear children, and partly because of the persistence of international surrogacy.
The report noted that existing laws against commercial surrogacy do not seem to deter Australians in Queensland, New South Wales and the Australian Capital Territory. No Australian has ever been prosecuted for engaging in the practice abroad.
Australian couples turn to international surrogacy arrangements for a variety of reasons. Altruistic surrogates can be difficult to find, especially since Australia prohibits advertising by intended parents or surrogates. Overseas surrogacy can also seem like a better choice for prospective parents because surrogates in Australia can, in theory, decide to keep the baby.
Same-sex couples in Australia may turn to cross-border surrogacy because they are banned in some jurisdictions from engaging in any domestic surrogacy—whether it be altruistic or not.
After discussing intended parents’ motivations, professor Jenni Millbank of the University of Technology in Sydney spoke to the committee about the flexibility of the transnational surrogacy industry: ’the apparent mobility of the international surrogacy industry means that changes to laws or practice in one country will often result in the relocation of the business to a more hospitable jurisdiction, where the regulatory regime may be weaker’.
The committee raised concerns that ’The legal, economic and social conditions in these countries greatly increase the risk that the rights of the child, and of the birth mother, may be infringed’.
Surrogates in poorly regulated countries may be involved in human trafficking or pressured into medical procedures they would not otherwise consent to, such as abortions or ’caesarean deliveries timed to fit the travel schedule of intended parents’. Children born through surrogacy may not be released to their intended parents or may not be able to access the identity of their biological parents.
An effective halt to commercial, cross-border surrogacy seems unlikely in a country where legal consequences are virtually nonexistent and domestic surrogacy is difficult (and for some same-sex couples, impossible) to access. The Senate committee simply advocated giving advice to citizens about the threats offshore surrogacy might have on human rights.
The catch-22 here is clear: while the committee notes that stopping Australian couples from engaging in commercial surrogacy is unfeasible, they continue to steer them towards poorly-regulated countries by calling for a national commercial surrogacy ban.
If Australia truly wishes to reduce the harm to commercial surrogates, it should endeavour to be a safe place for them, not to drive more business to a potentially sinister industry.
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