Monday, August 11, 2014

Surrogacy- a long awaited and precious gift, much loved by his family and a miracle of modern medicine

With all the news of the last week about the Baby Gammy case, and with commentators coming out of the woodwork criticising those who undertake surrogacy for wanting to engage in the commodification of women and children, I want to reflect on an event that happened to me a couple of years ago. It reflected how surrogacy can work, and do so very well.

Before I do, one of the commentators that I responded to, Professor Sheila Jeffreys,  said that commercial surrogacy was wrong because women overseas were treated poorly and exploited (as indeed there is some evidence of that happening in places like Thailand, but is not consistent with published Japanese research which indicated that surrogacy in Thailand generally went very well), while ignoring the experience of surrogacy in the US and Canada.

Professor Jeffreys, who authored The industrial vagina: The political economy of the global sex trade, amongst many works, also said that altruistic surrogacy involved the exploitation of women's bodies by male IVF doctors, as did IVF generally.

My experience in acting for hundreds of people who want to have children by surrogacy or egg or sperm donation is that by contrast neither altruistic surrogacy nor IVF involves exploitation (although it seems that at times we try to have too many cycles of IVF in Australia rather than look at the less invasive procedure of surrogacy as an option). Instead each represents the giving of hope- the hope of being able to be parents, when the hope and dream of becoming parents was otherwise a nightmare, never capable of being reached.

Similarly for those of my clients who feel as though they have been forced to go overseas because neither egg donors nor surrogates are here- the message they give is that of desperation to become parents, to achieve their dream of parenthood, not any desire to exploit others. They want to become parents through an honest, ethical, above board and not too involved or expensive process. Those who chose to go to Thailand and India did so in the main because they were unable to access surrogacy or egg donors in Australia and could not afford the costs of the United States.  Having said that, I have had clients who were Thai- Australian and Indian-Australian who wanted to undertake surrogacy in Thailand and India for fairly obvious reasons, including the need to rely on egg donors of their ethnicity and because of family, ethnic and historical connections. At times people with those ties have been unable to pursue those surrogacy arrangements because of our laws.

In the surrogacy case,  I had the joy of appearing in court for an amazing woman. She was not only the surrogate, but also the sister of the intended mother. The intended parents were forced to go down the surrogacy journey due to the intended mother having had cancer. Due to the very kind and generous offer of my client, medical assistance and the legal landscape allowing surrogacy, surrogacy was able to occur, resulting in the birth, the handing over and then the making of orders to enable the parents to become parents of a beautiful bouncing boy. This is what Judge Clare SC said:


"LCH is a long awaited and precious gift, much loved by his family and a miracle of modern medicine. When his biological parents were unable to conceive naturally, his aunt grew and nurtured LCH in her body for them."

No exploitation. No fear. Just love, generosity, the law and medicine working together to enable magic to happen.

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