Saturday, August 23, 2014

Statement by the Chief Justice and the Chief Judge about surrogacy

Australia's two most senior family law judges, the Chief Justice of the Family Court of Australia, Diana Bryant, and the Chief Judge of the Federal Circuit Court of Australia, John Pascoe, have called for commercial surrogacy in Australia, and getting tough with overseas commercial surrogacy: 

Joint statement from the Chief Justice of the Family Court of Australia, Diana Bryant AO and Chief Judge of the Federal Circuit Court of Australia, John Pascoe AO CVO
Commercial surrogacy contracts entered into overseas often disregard the human rights of the children and surrogate mothers involved and lead to the exploitation of poor and vulnerable women. Commercial surrogacy is not permitted in Australia and Australians should be concerned about the capacity for the basic human rights of people in our neighbouring countries to be violated.
Our concerns include:
The rights of the children being ignored.
What protections are in place when the contracting parents won’t take a child born
from these arrangements? Whether due to illness or disability, for example, or because there are twins born when the contract only stipulates one child. The surrogate mother is usually in no position to care for these unwanted children.
The rights of a child to know their genetic heritage is completely ignored.
We, as a society, think it is vital that children know both parents – sperm donation
and adoption practices of the past have taught us that – and yet surrogate children are often born by donor egg and that donor is completely unknown. The children born will likely never know about their genetic heritage, including genetic predisposition to hereditary diseases.
The suitability of parents and the safety of the child.
The suitability of parents is assessed when parents are adopting overseas or adopting
or fostering children within Australia. There are no constraints or safeguards with overseas surrogacy arrangements.
We are concerned about the inconsistency of Australian laws where overseas commercial surrogacy is illegal in some states but not in others. Where it is illegal to enter into a commercial surrogacy arrangement overseas, governments are apparently unwilling to enforce existing laws.
Courts being asked to make parenting orders are placed in a difficult position where there is clear illegality by the Australian “parents” but there is uncertainty about whether any action will be taken by the relevant authorities. Parents who have acted in good faith should not be left in legal limbo where their status as parents is unclear as is currently the case under state and federal laws.
In our view, if governments do not want to enforce these laws, they should be repealed.
We understand the powerful desire to become a parent, but it ought not to be at the expense of the welfare of the child or surrogate mother. We believe that children, surrogate mothers and would-be parents could be better protected if commercial surrogacy arrangements were permitted (and thus regulated) in Australia.
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Regulation could provide fairness in contractual arrangements; proper provision of health cover for the surrogate mother; and a rigorous eligibility criterion with the appropriate checks and balances for contracting parents.
Sadly, in our experience, the story of baby Gammy is not an isolated one but it provides an overdue opportunity for public debate and to focus on the establishment of a proper legal regime that protects the position and human rights of all parties, especially the vulnerable new-born. 


  1. The views of these Honourable Judges are interesting but it's a shame they've generalised so much about overseas commercial surrogacy in terms of unethical practice. Certainly, no one wants dodgy backyard operators and practices that bring surrogacy into disrepute as we've seen recently. But there are professional operators who do the right thing and who the vast majority Australians seeking surrogacy services engage. The Judges didn't mention, for example, of India's safeguards for children born through surrogacy. The Supreme Court of India has made it abundantly clear that the foreign contracting (genetic) parent is the parent of the child and fully responsible for them. India's IVF/surrogacy clinics have to be accredited for the purpose which requires them to conform to the Indian Council of Medical Research (ICMR) guidelines on surrogacy. These include the provision of comprehensive and legally enforceable contracts between the genetic parent and the surrogate and life insurance for the surrogate. There is no opportunity for child dumping and parents cannot get an exit visa for their child unless everything has been paid for and the surrogate agrees that all is in order. Further, no surrogacy arrangements can be commenced until the commissioning parent has been granted an Indian Medical Visa. Amongst other things, the requirements of these visas ensure the parent is not breaking the law in their home jurisdiction and can take the child home with them.

    The Honourable Judges do not make it clear why they think surrogates are mostly 'poor and exploited'. Recent independent US university research (eg S Rudrappa 2012) suggests this is not necessarily the case and quote Indian surrogates who recommend the opportunity to their friends and colleagues. In terms of consistency, would it be okay for these or any foreign women to earn a few months decent pay by working for long shifts and fly-in fly-out rosters on Australian mines sites or would that be considered exploitation too? Do Australians have the right or privilege to tell women from other countries what lawful employment they can undertake? And what about the UN's CEDAW Convention of which Australia is a signatory?

    The Honourable Judges are rightly concerned about the suitability of parents but there are no laws preventing consenting adults in Australia from procreating. Plenty of those are unsuitable as the disconcerting AIFS child protection statistic of 37,600 children being placed in out-of-home care (2011/12) suggests, let alone the many tens of thousands of child abuse notifications jurisdictions struggle to deal with annually. And how many children of asylum seekers is the Australian Government holding in life impacting detention? And did I read that 7,000 children have died in the current Syrian conflict? That's just one conflict....

    It would be a good move if Australia sorts out its inconsistent local laws on surrogacy as the Honourable Judges suggest, irrespective of whether it is a human rights priority or not. But in the meantime there shouldn't be a rush to ban Australians from accessing surrogacy from reputable and accredited overseas providers.

  2. Totally agree with you Tom! Even in Altruistic surrogacy in Australia Surrogates have been left with children as the law states the surrogate as the mother, this also happens to just under 10% of cases in America, an IP never comes to pick up their children.
    My son's surrogate is a nurse in India and I told her how people from western countries view IPs are exploiting surrogates from India, she was horrified. It is racist and arrogant to think women in developing countries do not have the intelligent in making their own decisions. There are many great clinics overseas in developing countries that are far more ethical than western countries. Our clinic lets the surrogate choose to stay in accommodation close to the clinic with their family or stay in their own home. They do not live in big dorms as portrayed time and time again by the media.
    I'm sick to death of arrogant westerners who believe every thing they read in tabloids and on television!
    People may be assessed for foster care but that doesn't stop the reports of child abuse in particular sexual abuse coming out of such homes of people who are deemed to be "appropriate" care givers.