The Western Australian was reporting on Saturday that WA Liberal MP's were looking at banning intended parents from accessing commercial surrogacy overseas.
Dear oh dear. Has it come to this, that they do not know what they do?
The law in WA
If the MP's looked at their laws, they would see that it is currently illegal in WA to engage in commercial surrogacy overseas. This is because of a combination of the Surrogacy Act and the Criminal Code.
However laws to ban people going overseas for commercial surrogacy don't work:
- Queensland, NSW and the ACT have specific bans. Queensland's has been in place in one form or another since 1988. No one has ever been prosecuted for entering into a commercial surrogacy arrangement overseas, despite hundreds of couples having done so. Is it surprising? Unless full admissions are obtained from the intending parents, prosecuting authorities would need to obtain the co-operation of the surrogate and probably the agency (each of which is unlikely. They are overseas so cannot tbe the subject of a warrant or a subpoena.), and probably have to get them to give evidence in Australia- at significant cost to the taxpayers, diverting taxpayer money in prosecutions away from other criminal law priorities. Very often surrogacy contracts drafted overseas purport to be altruistic in nature.
- In Europe, where surrogacy is banned, parents still go overseas in good numbers to access surrogacy. For heterosexual couples, this means that they pretend that they were lucky to have had a child overseas. The European bans unduly impact on gay and single men, who cannot pretend to have been pregnant.
How to stop a Baby Gammy case occurring again
Here are three steps:
- Reform the laws in Western Australia.
- Allow commercial surrogacy, as part of a package of reforms nationwide. Australia's IVF clinics are very good operators. The world's first IVF baby was born in Melbourne. The clinics are used to heavy regulation, and are transparent in their operations. Laws can be put in place that would ensure that there is no exploitation of women, donors, partners, children, or intended parents. If the US can do so successfully for the last 30 or so years, why can't we?
- Bring in a sensible Hague Convention on international surrogacy arrangements that is not too heavy handed, does not discriminate, but sets minimum standards.
The saddest part of the whole process was that Australia's MP's decided, for reasons best known to themselves, that only altruistic surrogacy would be allowed. Not one State decided to consider to allow commercial surrogacy. If they had done so, then in all likelihood we would never have heard the unfortunate tale of Baby Gammy and his sister.
I hope that Australian MP's wake up and realise that we need to take action as a nation, and that we don't have further cases like Baby Gammy happening again, coming from places like the Republic of Georgia or Nepal.