Comment about The Age editorial
But first- a quibble. The Age said:
” Nowhere in this country is it legal for anyone to engage in commercial surrogacy.”
Incorrect. It remains legal to engage in commercial surrogacy in the Northern Territory because there are no laws there about surrogacy at all. Not a line. Therefore there is no ban on commercial surrogacy in the NT. You can quite lawfully pay a woman to have a baby for you without any legal oversight at all. In reality commercial surrogacy can only occur in the NT if the only IVF clinic there is not involved. Due to requirements of the National Health and Medical Research Council, no IVF clinic can offer commercial surrogacy- even if it is legal under (in this case) NT law.Therefore it would be a home based surrogacy, may be involving the turkey baster, where the surrogate would not only carry the child for the intended parents, but also be the genetic mother. All without counselling or legal advice. Dreadful.
If you think that a home based surrogacy where a woman is paid will never happen- think again. My first surrogacy case was in 1988. A client sought advice from me as she had been paid $10,000 by a couple to have a child- and wanted to keep both the money and the child. My advice was that she could. Surrogacy (in all forms) had been criminalised in Queensland. Therefore the contract was void, and my client could hang on to the money. It was unlikely that the couple would take her to court, given that my client was the genetic mother (and had a good chance of success) but also because they might be prosecuted.
The Age hit the nail on the head when it said that surrogacy was a “legally contentious and morally perplexing issue”. The reality is that surrogacy is full of ethical dilemmas. As we have seen in the Baby Gammy case- all parties are open to the possibility of exploitation, and the worst affected, as always, are the children.
However, it should not be assumed that commercial surrogacy necessarily involves exploitation. Some of the leading surrogacy agencies in the world, for example, operate from a human rights and feminist perspective.
I also agree with this comment, which echoes words of my grade 2 teacher Mrs Bray, who taught me repeatedly that two wrongs don’t make a right:
“But the fact that many Australians go overseas to do what they are banned from doing here is not a sufficient justification for legalising commercial surrogacy. This is not about economics. It involves human rights, especially the rights of the child – rights which, in a commercial transaction, may be too easily subverted in the rush to satisfy someone’s desire to be a parent.”