Paper on Surrogacy
Associate Professor Anita Stuhmcke
29 October 2008
The recent media and legal interest in surrogacy coincides with the 2006 birth of a child
to a Federal Senator – Stephen Conroy – and his wife who was infertile due to ovarian
cancer. The couple travelled from Victoria to engage in IVF surrogacy in NSW due to
the illegality of the procedure under Victorian laws. The procedure involved a donated
egg and a surrogate mother – so four adult parties. This is an example of medical
surrogacy – where IVF a form of assisted reproductive technology is used together with
surrogacy to produce a child.
children born as a result of surrogacy arrangements. Under existing law the birth mother
and her partner if she had one, was the only one of the four adults who had legal rights
with respect to Isabella following her birth. The donor relinquished her rights at the time
of embryo creation; Senator Conroy, the biological father could not be recognized legally
and similarly his wife had no legal standing. The Conroy’s returned to Victoria and
applied to the Family Court of Australia for parenting orders 1 which were granted 12
months later in 2007 – Senator Conroy was also granted legal recognition as Isabella’s
father. The estimated cost of this to the Conroy’s was between $40 -50 000. 2
Since 2006 there has been a flurry of legal review. In November 2006 SCAG – the
Standing Committee of Attorneys-General resolved to consider working towards national
uniform legislation to regulate altruistic surrogacy. The terms of reference are:
– commercial surrogacy remain illegal
Any person concerned with the care, welfare and development of a child can apply to the Family Court for residence, contact or parental responsibility, this can be done by consent with the birth mother, or in contested proceedings without her consent in the case of a dispute.
Tasmanian Legislative Select Committee on Surrogacy, 1 July 2008, Witness Senator Stephen Conroy,
http://www.parliament.tas.gov.au/ctee/Transcripts/1%20July%2008%20-%20Conroy.pdf , 15 October
2008. The financial burden for IVF surrogacy is compounded because the intending parents and birth mother are excluded from Medicare funding.
– altruistic surrogacy arrangements be legal but unenforceable
– informed consent be required from all parties
– there should be mandatory specialist counseling
– court orders should enable the intended parents to be recognized as the legal
parents if all legal prerequisites met and it is in the best interests of the child
Also since 2006 five state jurisdictions have completed or commenced law reform
inquiries into surrogacy – NSW, Tasmania, SA, WA and Queensland – with multiple
recommendations for legal reform being made – some of which echo those of SCAG.
Tonight’s message is that while this current law reform is very much a positive and
welcome step I predict that the practice of surrogacy will remain a recurring legal
dilemma and that the suggested reforms will fail to prevent the dilemma of surrogacy
My basis for the argument that the current raft of proposed legal reform will fail is
because it does not:
1. offer a national holistic approach: Australians are entitled to reproductive
equality regardless of where they live, it is doubtful not only that there will be a
national response but also unlikely that the suggested reforms will address all
areas of law which surrogacy impacts – such as provision of donor gametes and
the operation of ART regimes and areas of Commonwealth Law such as
immigration law and payments of family benefits;
2. it does not tackle the practical issues presented by this method of family
formation: the focus of law reform remains on the needs of adults and reinforcing
the norms of society instead of being aimed at providing the same legal
protections to children born through surrogacy arrangements as other children.
My talk tonight is therefore divided into two parts:
The first part examines why surrogacy may currently be labeled as a dilemma and
the second part examines why it is a recurring dilemma.
Current legal approach
The practice of surrogacy has a long history – there is a biblical reference to surrogacy in
Genesis; the private diaries of Winston Churchill’s wife Clementine revealed that she
offered to give the couple’s fourth child to Lady Jean Hamilton, a close family friend,
unable to conceive;
there are records of a NSW family using the practice since the late
1800s. Surrogacy is also based upon Western cultural assumptions: for example, Torres
Strait Islanders have campaigned over the last twenty years for recognition of their
customary adoption practices which may from a Western perspective be labeled as
Surrogacy is not the same concept as adoption. In surrogacy arrangements a child is
created with the express intention of giving it up to identified parents. It is this important
difference together with the surrogacy being combined with medical innovations in
assisted reproductive technologies such as IVF which result in surrogacy being a legal
The fact that law is unable to effectively regulate the complexity of surrogacy is reflected
in the existing inconsistencies in national legal regulation. The national regulatory
approach may at best be said to be fragmented and at worst it may be described as
Szoke H, ‘Surrogacy: All the Features of a Relationship That Could Go Wrong? (2001) 28 Melbourne
Journal of Politics
To illustrate this point let us use the jurisdictions on the north eastern seaboard – NSW,
the ACT and Queensland – as points of comparison.
In NSW if using traditional surrogacy where the surrogate mother uses her egg and the
semen of the intending father – you may advertise for a surrogate and may pay her. In the
ACT you can’t advertise for nor pay a surrogate. In both NSW and the ACT you may be
able to use a private IVF service for a surrogacy arrangement, although it would probably
not be compensable through Medicare and therefore be fully self-funded. Once the child
is born, if you are in the ACT you can apply to have parental status transferred from the
birth mother to the commissioning parents. If you live in NSW you can attempt to apply
for parental orders by consent from the Family Court – but there is no guarantee they will
be granted. On the other hand if you are from Queensland all forms of surrogacy are
illegal and those entering into any of the arrangements just described – including those
who facilitate them such as doctors – may currently be prosecuted and imprisoned.
It is therefore unsurprising that the current legal regulation of surrogacy across Australia
has been described as “medicine by postcode”.
Depending upon where you live and
what relationship you are in you may or may not be able to form a family through
There is however one overriding legal certainty
– Australian courts will not enforce a
surrogacy arrangement as a contract. If a birth mother decided to keep the child and
refused to give her or him up to the intending parents the issue of custody would be
determined as a family law dispute and the best interests of the child test used to
determine whom the child should be placed with.
In 2008 this legal point may seem obvious and universal, however go back just over
twenty years and the 1985 American courts in the case named Baby M wrestled with this
Dr Christine Kirby, Oral evidence to South Australia, Inquiry into Gestational Surrogacy, Social
Development Committee, Report 26, Adelaide, Parliament of South Australia, 2007, 27
Although this has not been legally tested in any Australian jurisdiction.
very point. In that case a professional couple Bill and Betsy Stern decided not to risk the
dangers of child bearing when they learnt that Betsy was suffering from multiple
sclerosis – determined to have a ‘child of their own’ they paid Mary Beth Whitehead $10
000 in exchange for the conception and birth of the child – who was genetically, through
artificial insemination, the product of Mary Beth Whitehead and Bill Stern. Four days
after the birth Mary Beth Whitehead disappeared with the baby girl allegedly saying ‘I
signed on an egg. I didn’t sign on a baby girl.’
Eventually the Stern’s won custody of
the child but not before the US courts had decided that at first instance the contract
between the Stern’s and Mary Beth was actually valid and enforceable meaning that
because Mrs Whitehead had signed a legal document which stated that upon birth she
would give the child away to the Stern’s that this contract was to be given full effect by
the courts. This finding was rejected ultimately in favour of the legal determination
being made on the equivalent to our best interests of the child test.
Update 20 years and the child born of the agreement, Melissa Stern turned 18 in March
2004 and formally terminated Mary Beth Whitehead’s parental rights and formalized
Elizabeth Stern’s maternity through adoption proceedings. As of March 2007 Melissa
was a junior at George Washington University majoring in religious studies – she hopes
to become a minister – has not ruled out having children of her own and states that it was
strange to study the Baby M Case in her bioethics class at the university.
It is important then to note that family law tests and not contractual principles will apply
to any disagreement following the birth of a child through surrogacy. This is the case as
existing specific legal Australian regulation on surrogacy generally focuses upon whether
to allow or disallow commercial surrogacy such as what the Sterns and Mrs Whitehead
engaged in rather than concerning itself with issues such as what happens to the child
after the birth.
Deborah L Spar, ‘For love and money: the political economy of commercial surrogacy’ (2005) 12 (2)
Review of International Political Economy at 288
‘Now It’s Melissa’s Time’ New Jersey Monthly (2007).
Currently, five Australian jurisdictions have surrogacy legislation: Victoria, South
Australia, Tasmania, Queensland and the Australian Capital Territory.
There is no legislation in Western Australia, the Northern Territory and New South Wales
resulting in existing arrangements in these jurisdictions being regulated by a hotch–potch of laws not created with surrogacy in mind
and also by NHMRC (National Health and Medical Research Council) ethical guidelines and the Reproductive Technology Accreditation Committee (RTAC).
In all Australian jurisdictions there are significant legal similarities:
• A disapproval of commercial arrangements with advertising
• All legislation extends to pre-conception or post conception arrangements
• All surrogacy contracts are void and unenforceable – this is also probably the case
in jurisdictions such as NSW which do not currently have such legislation in force
A cultural homogeneity is assumed – for example in Queensland
Victoria: Infertility Treatment Act 1995 (renders commercial surrogacy an offence)
Queensland: Surrogate Parenthood Act 1988 (arrangements relating to surrogacy illegal and imposes
criminal penalties on all parties)
South Australia: Family Relationships Act 1975 (offence to receive valuable consideration for a surrogacy
arrangement – contracts illegal and void)
Tasmania: Surrogacy Contracts Act 1993 (an offence to make or receive a payment or reward in relation to
a surrogacy arrangement – all surrogacy contracts are void and unenforceable)
ACT: Parentage Act 2004 (refers to a substitute parent agreement, it is an offence to enter into a
commercial agreement but allows a surrogacy arrangement to the extent that the legislation facilitates the
ability of the intending parents to become the legal parents of a child and to be registered as such)
In NSW the Assisted Reproductive Technology Act 2007 has passed both Houses of Parliament but has
not yet been proclaimed. The effect of that Act would be to render surrogacy agreements void; commercial
surrogacy illegal and the actions of third parties who facilitate such agreements illegal.
Despite not having legislation in NT and NSW and WA all jurisdictions are covered by the National
Health and Medical Research Council Guidelines on ART together with the Code of Practice for Assisted
Reproductive Technology Units developed by the Reproductive Technology Accreditation Committee.
The guidelines state that it is ‘ethically unacceptable’ to undertake surrogacy for commercial purposes and
that parties should undergo counselling
The Torres Strait islander community wants legal recognition of their tradition of altruistic surrogacy and
inter-family adoption – an objective which the Kupai Omasker Working Group has been campaigning for
over 20 years. Eddie Mabo is perhaps the most ‘famous product’ of such traditional adoption
• In most Australian jurisdictions the birth mother and her male partner (if any) are
regarded as the legal birth parents of the child
The result of the current regulation for Australians is:
Firstly, jurisdiction shopping.
Secondly, a legal vacuum for intending parents following the birth of the child as the
ACT is the only regime which allows the transfer of legal parentage from a surrogate to
the intending parents via a special purpose legal mechanism by way of Court order.
Thirdly, the uncertain interplay between Commonwealth and state laws particularly with
respect to payments for example:
• the baby bonus:
decision about eligibility is determined by Centrelink,
eligibility is determined by care for the child but may be split between two
parties. Intending parents who assume actual care immediately after the birth will
have sole claim to the payment.
• Parenting payments:
payment is available to principal carers however intending
parents may not be entitled unless they are legally recognized as parents of the
• Entry into Australia following surrogate birth overseas: there is no option under
migration provisions for surrogacy they are currently considered under expatriate
provisions which require (amongst other things) that the adoptive parent(s) were
residing overseas for 12 months prior to the adoption for reasons other than to
adopt a child.
South Australia, Inquiry into Gestational Surrogacy, Social Development Committee, Report 26,
Adelaide, Parliament of South Australia, 2007, Appendix 2.
A New Tax System (Family Assistance) Act 1999 (Cth); A New Tax System (Family Assistance)
(Administration) Act 1999 (Cth).
Social Security Act 1991 (Cth).
Most simply the explanation for the fragmented current regulation of surrogacy is due to
the Federal Constitution not specifically allowing federal laws.
Of course the states could hand over control of this area to the Commonwealth or else
echo Commonwealth legislation as has been done with cloning.
This to my knowledge
is not a conversation which has happened between the Commonwealth and the States and
the historical record as to state and federal cooperation on surrogacy is also not
promising. Almost twenty years ago now in 1990 the then National Bioethics
Consultative Committee recommended a national approach and found that state-approved
agencies should be introduced nationally to supervise the practice of surrogacy – these
agencies would be required to provide counseling and establish standards of practice for
public accountability of third parties such as social workers and health practitioners.
Agencies would be required to maintain records on children’s origins and legislation was
drafted to determine legal parentage. The NBCC also recommended that:
* Surrogacy should not be totally prohibited;
* Surrogacy should not be freely allowed
* Surrogacy practice should be strictly controlled by uniform legislation and
* Uniform legislation should render all surrogacy arrangements unenforceable and
include controlling mechanisms for agencies and advertising controls.
Following this a 1991 joint meeting of the Australian Health and Social Welfare
Ministers agreed to support national legislation to control surrogate motherhood.
As we have seen the Australian legal response that has resulted is far from uniform.
This is however clearly not an avenue that the various jurisdictions have been willing to pursue. In 1991
the Australian Health and Social Welfare Ministers recommended a holistic approach to surrogacy through
legislation – the result is the hotch potch we now have.
There were two dissents to this view: National Bioethics Consultative Committee, Discussion Paper on
Surrogacy 2 – Implementation, October 1990
Given then that there is unlikely to be national legislation passed it is important to ask
whether it is possible for states to agree on this area of family formation. There are
clearly a number of potent obstacles which go some way to explaining the differential
The most important obstacle is that surrogacy is an ethically and morally divisive practice
– it may be humanized or be sensationalized or demonized – due to the simplicity,
diversity and complexity the practice offers.
This can be highlighted through four judicial decisions – the first three are Australian and
the last is from the US:
The first Application of A and B :
In New South Wales the birth mother offered to be a surrogate mother for her sister. Her
sister had been married since 1979 and had no children. The birth mother was
inseminated with the sperm of her sister’s husband and gave birth to a child in 1997. The
case concerned an application for an adoption order by the sister and her husband. The
application was not contested. The NSW court approved the adoption order.
The second Re Evelyn (1998):
In South Australia Mrs S married with 3 children offered to be a surrogate for her friends
Mr and Mrs Q who lived in Queesland. The child was born in 1996. Mrs S found it
difficult to cope with the relinquishment of the child to Mr and Mrs Q and travelled from
South Australia to Queensland and removed the child from Mr and Mrs Q. Custody was
contested and the final decision was made by the Full Court of the Family Court of
Australia that Mrs S be given custody of the child.
The third Re Mark:
Bryson J Application of A and B  NSWSC 640
Re Evelyn (1998) 23 FamLR 53
In 2002 Mark was born through a commercial surrogacy arrangement in the United States
using a donor egg and the sperm of Mr X. Mr X is in a partnership with Mr Y. Mr X and
Mr Y live in Victoria and applied to the Australian Family Court for parental
responsibility. The Court declared that parental responsibility for Mark vests in Mr. X
and Mr. Y. They alone have the duties, powers, responsibilities and authority which, by
law, parents have in relation to children.
The fourth Buzzanca:
In the United States Baby Jaycee was born to the intended parents by a gestational
surrogate using an anonymous egg donor and an anonymous sperm donor. One month
before the expected birth of the child, the intended parents separated and petitioned for
divorce. The intended father argued that he was not liable for support payments as the
child was not the “child of the marriage”. The Court disagreed and found that it was
enough that the Intended Mother had made a sufficient showing that the Intended Father
would be declared the child’s legal father by a court at some future date and therefore
ordered the family law court to determine an appropriate child support order.
The case examples reflect the diversity and complexity of surrogacy and show the
difficulty of regulating all the complexities of surrogacy. As we can see these cases are
not unique to Australia – as we speak there is uncertainty over the parentage of a child
born through commercial surrogacy in India
who has three mothers – a donor egg; a
birth mother and an intended mother but whose parents divorced during the pregnancy
meaning that Indian laws will now not allow the Japanese father to take the child out of
Re Mark: An application relating to parental responsibilities  Fam CA 822
Buzzanca v. Buzzanca 61 Cal. App. 4
1410; 1998 Cal. App. Lexis 180: 72 Cal. Rptr. 2d 280,
Surrogacy costs around $12 000 in India compared to $70 000 in the US (see
Such cases which sensationalise surrogacy highlight that it is a moral or political or
ethical response to surrogacy which drives the existing legal regulation of surrogacy
across Australia. Surrogacy throws at law the clash of norms:
The assumption that a child has two parents
The assumption that a child should be biologically related
The assumption that heterosexuals should create families
The assumption that nature should predetermine family formation
The assumption that motherhood and fatherhood should not be splintered.
It poses questions society has not previously had to address. In terms of our own moral
compass: would we help out a family member who could not conceive – if we did so
would we expect compensation for lost earnings or a card to thank us – what will happen
to family if we allow people to be paid to bear children? What exactly is the gift
relationship and understanding of engaging in a process of bearing a child for another?
The issue is whether it is the best response to ban a practice because it conflicts with
normative assumptions. Indeed, it has been suggested that in a liberal democracy
governments should not prohibit private activity such as surrogacy arrangements unless
the activity does harm to others.
Writing in 2006 an Australian academic author in this
area, Willmott states “Despite speculation that surrogacy arrangements exploit the
surrogate mother and are potentially harmful to the child, the available empirical research
does not support this position. Indeed, the relatively limited amount of research that has
been conducted suggests that surrogacy arrangements are, on the whole, successful.’
Willmott L, ‘Surrogacy: ART’s Forgotten Child’ (2006) 227 University of New South Wales Law
Journal 227 at 230
Willmott L, ‘Surrogacy: ART’s Forgotten Child’ (2006) 227 University of New South Wales Law
Journal 227 at 230
Harm is of course a difficult concept to evaluate. A dilemma for law makers is the lack of
empirical research as to either the extent of the practice or the impact of the practice on
children; birth mothers; intending parents and third parties such as counselors.
In Australia such research is non-existent what we must rely upon is international
In terms of the birth mother United States quantitative and qualitative studies of
surrogates over the past twenty years, mostly from a psychological or social work
perspective, confirms that the majority of surrogates are satisfied with their surrogacy
experience, do not experience “bonding” with the child they birth, and feel positively
about surrogacy even a decade after the birth.
In terms of intending parents United Kingdom research explored 42 intending parents and
34 birth mothers and found that the experiences of intending parents were positive and
that relationships between commissioning parents and birth mothers were generally
There is less research focus upon children born of the arrangements – the first of its kind
was a study released in July this year by scientists from the Centre for Family Research at
Britain’s Cambridge University carried out interviews and psychology tests among 39
surrogacy families, 43 donor insemination families and 46 egg donation families.
children are now seven years old. For comparison, they made the same investigation
among 70 families where the children had been conceived naturally. They also asked the
Teman, Elly. 2008. “The Social Construction of Surrogacy Research: An Anthropological Critique of the
Psychosocial Scholarship on Surrogate Motherhood,” Social Science & Medicine. Volume 67, Issue 7,
October , Pages 1104-1112
MacCallum F, Lycett E, Murray C, Vasanti J & Golombok S, ‘Surrogacy: The Experience of
Commissioning Couples’ (2003) 18(6) Human Reproduction 1334, 1334
Casey P, Readings J, Blake L, Jadva V and Golombok S ‘Child development and parent-child
relationships in surrogacy, egg donation and donor insemination families at age 7’ (2008) Centre for
Family research, University of Cambridge, UK
The conclusion of the study was that children born to a surrogate mother or conceived
through donated sperm or a donated egg do just as well psychologically as counterparts
who are naturally conceived.
As we do not have empirical evidence as to the harm of the practice the answer as to the
fragmentation of existing Australian law must lie in palatable politics and moral norms
and ethical principles. It also of course must encompass religious, economic and other
dominant social forces.
In terms of moral judgment the practice of surrogacy evokes a strong emotional response
– on the one hand it confronts our westernized cultural norms by splitting parenthood –
particularly motherhood into different categories of biological, gestational and social.
– on the other hand it has been viewed as “the greatest gift that can be given – the gift of
With respect to the legal regulation of biomedical development a response based upon a
lack of empirical evidence or morality or political opinion is arguably not enough – it
may also not be enough to apply ethical principles. These also may be contradictory and
confusing. For example in surrogacy principles of personal autonomy clash with those of
paternalism – on the one hand a woman can do with her reproductive capacity as she
pleases – on the other can a woman ever truly give full consent beforehand to give away
a child she gives birth to?
Another example is the regulatory difference applied to commercial and altruistic
surrogacy. This must be based upon the practices being different – that love and
altruism is more acceptable than commerce and industry in family formations. Some of
the ethical principles which have been argued as supporting such a distinction include:
Current regulation in Australia answers this ethical dilemma by rendering agreements void and
unenforceable meaning that a birth mother cannot be forced to relinquish her child.
• the child is commodified in commercial surrogacy: surrogacy is baby-selling and
promotes product quality, it is an exercise in positive eugenics and that surrogacy
focuses upon the needs of the adult rather than the child;
• parenting is commodified in surrogacy – that poor women may be exploited in
commercial surrogacy or that weaker family members may be emotionally
exploited in altruistic surrogacy.
These ethical arguments are difficult – some are unanswerable and some, due to the
nature and now relatively long history of the practice of surrogacy, may be answered with
sensational examples to support a disparity of views. For example – take altruistic
surrogacy and the emotional exploitation argument:
• on the one hand we have the example of Alejandra Munoz, a poor illiterate
Mexican woman, who was brought illegally to the US on the understanding that
when she became pregnant for her infertile cousin the embryo would be flushed
out and transferred to this cousin. On threatening to have an abortion when told
she was obliged to continue the pregnancy, her relatives kept her under house
confinement, threatening to expose her as an illegal alien.
• On the other – if we dare to compare – we have the example of Australia’s first
IVF surrogacy birth mother – Linda Kirkman who states “Why did I do it? There
were those who suggested I was seeking approval, or was the downtrodden
bullied and coerced little sister. The latter description is so wrong that it is risible.
I am a confident, outgoing woman, and the final decision was mine. Gestating a
baby was something I could do that Maggie could not. My children wanted
siblings whom they were not going to get. I loved giving birth and wanted to do it
again, without the hassle of then caring for another baby. It was the right thing
for me to do.”
M Stainsby, ‘The Surrogacy Debate Again: What about altruistic surrogacy?’ (1993) 11(2) St. Vincent’s
Bioethics Centre Newsletter 5 at 6
Linda Kirkman, ‘Altruistic Surrogacy: New Twist to and old practice’ (2008).
Proposed law reform
Against this background of ethical uncertainty, political middle-ground and moral
division we have had recent law reform committees in Queensland, Western Australia,
South Australia and Tasmania making welcome recommendations for legal change. In
New South Wales we are currently in the process of a Legislative Council inquiry
conducted by the Law and Justice Committee into surrogacy reform with submissions
apparently still being accepted and recommendations projected into next year.
Importantly the current round of law reform acknowledges that surrogacy is a means of
family formation. As the 2008 Tasmanian inquiry wrote ‘…the Committee has found
that surrogacy is a fact of life in Tasmania’ (2008). Of course surrogacy can most simply
be achieved through sexual intercourse or self insemination – indeed there are anecdotal
reports of women giving birth to children under a swapped Medicare card – as such
arrangements are informal there is no way of being sure of frequency.
Surrogacy is not a commonly performed medical procedure.
The reform reports also acknowledge that
surrogacy is a global practice. That Australians engage in what has been glibly termed
‘reproductive tourism’ – most prominently in California and India where there is now
Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland, Report,
Queensland Parliament, October 2008 p 5:
In Victoria the Assisted Reproductive Technology Treatment Bill 2008 proposes access to assisted
reproductive technology services or ART services on a non-discriminatory basis for altruistic surrogacy and
specifically provides for the transfer of legal parentage;
In Western Australia the Surrogacy Bill 2007 provides a framework for altruistic surrogacy including
access to ART services and provision for the transfer of legal parentage.
In South Australia a private members bill, the Surrogacy Bill has passed the lower house in June 2008 and
has to be debated in the upper house – it supports gestational surrogacy through fertility clinics along with
provision of transfer of legal parentage.
In Tasmania a report finalized in August 2008 by the Legislative Select Committee titled ‘Report on
Surrogacy’ recommended that the current Tasmanian legislation preventing access to services for altruistic
surrogacy be repealed and that couples seeking lawful surrogacy agreements in other states be able to
access legal and psychological services within Tasmania.
In NSW an inquiry into altruistic surrogacy was commenced in August 2008 and is due to report in March
We may be able to assume that due to the legal and practical and financial obstacles surrogacy is not at
the forefront of many peoples minds when attempting to plan a child.
Parliament of Tasmania, Legislative Council Select Committee Report on Surrogacy, 2008 at 10
what is referred to as a commercial surrogate industry which is accessed by Australians
unable to find an alternative in Australia.
The law reform reports also generally assume that most people enter into these
arrangements because they are infertile or because surrogacy offers them a means to have
a child at least partially genetically related to them.
If we keep on with these general assumptions it follows that as rates of infertility are increasing
34 and the availability of children for adoption in Australia is declining, 35 more and more Australians will consider surrogacy as a possible path toward having children. 36
These points have lead recent reform inquiries to make comments such as “surrogacy is
an unstoppable tide”. The Victorian Law Reform Commission suggests that the current sentiment in law reform indicates a position of ambivalence towards the practice of altruistic surrogacy. 37 This is reflected in comments recorded by the Tasmanian inquiry such as “you want quality assurance; you don’t want cowboys running it…we can simply say that we know
33 However it has also been suggested that women may prefer to employ a birth mother for cosmetic reasons such as to avoid varicose veins or for convenience such as avoiding the interruption a pregnancy may bring to her work: P Singer & D Wells, The Reproduction Revolution: New Ways of Making Babies (Oxford University Press, London, 1984) 113.
34 See Australian Institute of Family Studies, ‘It’s Not for Lack of Wanting Kids’: A Report on the Fertility Decision Making Project (2004). ACCESS estimates that one in six Australian couples are infertile – these figures of course relate to heterosexual couples and do not take into account single people or homosexual couples who may wish to pursue surrogacy.
35 In NSW there were 84 inter-country adoptions and 9 local adoptions in 2005: DOCS e-newsletter January 2007. The total number of adoptions in Australia is 5% of what it was 30 years ago: House of Representatives, Standing Committee on Family and Human Services, Overseas Adoption in Australian: Report on the Inquiry into Adoption of Children from Overseas (2005), at 1-2.Moreover, the Report argues that there is an ‘anti-adoption’ culture in some state departments and that intercountry adoption is far less accessible in Australia than in other adoption ‘receiving’ countries..
36 Not all of these people are able to access ART procedures – medical reasons such as a woman not having a uterus or a medical condition which makes pregnancy life threatening may mean that surrogacy is the only available option for them.
37 Victorian Law Reform Commission, Á.R.T., Surrogacy and Legal Parentage: A Comparative Legislative Review’ 2004 at [3.5.6].
something is going on. We know about things in the community that we don’t agree with
but we still say it is better to regulate them.” 38
In effect if legislation is introduced as a result of the reforms the emphasis across most
Australian jurisdictions will be to allow, perhaps not encourage, but allow the legal
mechanisms for transfer of parentage following altruistic surrogacy arrangements to take
place in Australia.
Overall much of the proposed law reform discussion accepts that the genetic connection
should not be treated differently for the purposes of regulating the practice, and
entrenches concepts of altruistic surrogacy versus commercial surrogacy.
An important and essential step forward is that many of the recommendations focus upon
the transfer of legal parentage – a milestone with respect to protecting children born of
Why is surrogacy a recurring dilemma?
This law reform is positive. Indeed the recent flurry of activity leaves the impression that
something will be done nationally and that this will be an appropriate community
response as surrogacy is a new technological dilemma posing novel and complex issues.
I have some difficulty with this picture.
One difficulty is that the response of Australian legislatures is fragmented and therefore
inequitable. I suggest that it is unlikely given the history of surrogacy regulation that
this will change. There is a need for a holistic Australian approach to span
parentage/gamete donation/immigration etc – the current response does not come close to
Parliament of Tasmania, Legislative Council Select Committee Report on Surrogacy, 2008 at 31
A further difficulty is that surrogacy is like any other area of rapid biomedical
development where the practice is at first greeted by community condemnation and
outrage which turns into a slow acceptance and then gradually into approval. We have
seen this happen in other areas of non-traditional family formation such as IVF and we
can find evidence for it in surrogacy. One indication that this is occurring in surrgacy is
the change in use of terminology over the last twenty years.
Firstly, we now refer to the birth mother rather than surrogate mother – surrogate mother
implies that she is to some degree a substitute mother. This shift is apparent in existing
legislation – for example introduced in 1988 the Queensland legislation is titled the
Surrogate Parenthood Act; fast forward to 1994 and the Australian Capital Territory
named its legislation the Substitute Parent Agreements Act and since 2004 this is now
titled its Parentage Act.
Secondly, we now refer to intending parents rather than commissioning parents which
implies that there is a legally enforceable commercial agreement
Thirdly, the arrangement is not now referred to as an agreement – as the implication of
agreement being there is a contractual legality to the practice
Fourthly, language often refers to gestational versus traditional surrogacy arrangements –
where traditional arrangements signal the use of the birth mother’s own genetic material
as opposed to gestational where the child she carries is formed through a medical
procedure such as IVF and is not genetically related to her. The current law reform is
moving away from this distinction being necessary for legal regulation.
This shift in terminology arguably reflects a shift towards increasing acceptance in the
reaction of the society to surrogacy. 39
The definition of surrogacy could now be:
The practice of surrogacy is where a formal or informal agreement exists for a birth
mother to bear a child for the intending parents and to permanently transfer the
responsibility for the child’s care and upbringing to them after the child’s birth.
As can be seen such a definition removes many of the now objectionable terms – it
captures what is different about surrogacy and adoption – the birth of a child for a
specific set of parents.
Indeed perhaps the remaining true dilemma in terminology for Australian law makers
rests with the final distinction between altruistic and commercial surrogacy. This is the
last term left standing – altruistic being where a birth mother receives no material reward
for the arrangement as opposed to commercial where she may. This is the final difficulty
– current law reform seems more concerned with not questioning the distinction between
commercial and altruistic surrogacy than with ensuring that children born have legal
Of course this point is debatable – it may be argued that current law reform should not
even begin from the premise that altruistic surrogacy is allowable and open for
regulation. This is a debate of force put particularly forcefully by some feminist groups
such as FINNRAGE and some religious organizations.
I think that the debate has moved on from this point and for tonight I am more interested
in the fact that most of the inquiries, particularly the most recent in Queensland and New
South Wales, begin from the premise that the current prohibition on commercial
There has been longitudinal research done on increasing acceptance of assisted reproductive technologies
see: Gabor T Kovacs, Gary Morgan, E Carl Wood, Catherine Forbes and Donna Howlett, ‘Community
attitudes to assisted reproductive technology: a 20-year trend’ (2003) 179 (10) MJA 536-538.
Investigation into the Decriminalisation and Regulation of Altruistic Surrogacy in Queensland, Report,
Queensland Parliament, October 2008 p 3.
surrogacy is one that should not be explored.
The implication being that altruistic
surrogacy is more acceptable than commercial surrogacy.
Of course this makes sense as at first glance altruistic surrogacy accords more with
cultural norms of love and family whereas commercial surrogacy sends out the message
of commerce and market and payment for gestating a child.
Indeed, the debate around
commercial surrogacy – allowing a birth mother to make money from her pregnancy has
been subject to much debate concerning issues of commodification and self-ownership,
Market alienability has it that surrogacy ought to be freely marketable due to property
interests each of us holds in our reproductive capacity while to the contrary,it has been
argued that surrogacy devalues women’s personhood and commodifies women’s bodies
and the creation of a market in babies where the price of babies may be
equated to the price of soybeans
with the result that the market may distinguish between
“first quality” and “second quality” children.
At least for the present, by not even opening the question, law reformers have chosen not
to address these commodification arguments. This leaves altruism as the regulatory
device of choice for surrogacy.
The most important question therefore becomes what is altruism?
For example the inquiries in Queensland and New South Wales were set up only to deal with altruistic
surrogacy and with sentiments such as ‘community values within Australia are rightly set against the
commodification of children and the exploitation of socially and economically disadvantaged women.
Zehr JL, ‘Using Gestational and Pre-Implantation Genetic Diagnosis: Are Intended Parents Now
Manufacturing the Idyllic Infant? (2008) Loyola Consumer Law Review 294 at 301-302
Halewood P, ‘On Commodification and Self-Ownership’ (2008) 20 Yale J.L. & Human. 131 at 159-161
Margaret Jane Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957
Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. Legal Stud. 323,
Robert Pritchard, A Market For Babies?, 34 U. Toronto L.J. 341 (1984).
The spectrum of views is that altruism means no reimbursement at all – or allows some
recognition of financial payment
or that altruism could include reimbursement to the
surrogate mother for:
Life and disability insurance
Travelling to and from hospital
Ovulation and pregnancy test
AI or IVF if required
Child care to attend hospital etc
Loss or earnings
The definition of altruism which is applied is critical. As it is here, in creating a
division between the protection of a child born through altruistic surrogacy and the
protection of a child born through commercial surrogacy, which I predict will cause
surrogacy to return to us at a future point as a recurring dilemma as:
….if we continue to witness a thriving market in infertility through the provision of
assisted conception services in clinics, but pretend that this commercial aspect does not
exist and cannot apply to surrogacy because we have condoned the practice in domestic
legislation then we may increase the chances for exploitation to occur abroad and
domestically. Indeed there is a growing social phenomenon of individuals interacting in
In the UK altruistic surrogacy allows for payments to a birth mother for her expenses of between 10 000
and 15 000 pounds.
Submission by Commission for children and young people and young people to Investigation into the
Decriminalisation and Regulation of Altruistic Surrogacy in Queensland, Report, Queensland Parliament,
20 June 2008 at 9
the global public marketplace such as through the internet for the chance to parent a
Perhaps to turn the argument around for a moment – the success of the current proposed
reforms which use altruism as the regulatory tool to either protect or not protect children
relies upon adults completing the very difficult. In the past altruism alone has not met the
demand for children through surrogacy and likely will not in the future. Altruism means
that persons who wish to pursue surrogacy will need to find a family member or a known
person of the right age and willingness to carry a child – or a stranger through
advertisement. Past experience shows us that if people cannot pursue a family due to
these obstacles they will turn elsewhere – the fact that there are alternatives available in
an international marketplace demonstrate the limits of altruism as the choice of regulatory
It is not my intention to come across as arguing for a surrogacy industry on the same
scale as we see in India and some states in the US. As was noted in the flyer tonight I
have been interested as a legal academic in the practice of surrogacy since the late
1980’s. I have written and taught in this area for almost two decades. Throughout almost
all of that time I have always been able to answer my students question as to what I
thought about the practice as “I honestly do not know” – I could say I did not know as I
had no personal compass to go on – my interest in the area was not driven because I
knew someone going the process. Instead it was the mirror that surrogacy reflected of
our society which interested me as the practice throws many of our cultural and familial
normative assumptions into sharp relief – highlighting the reticence society feels to
condone anything it perceives as not normal.
Goodwin M, ‘Altruism’s Limits: Law, Capacity and Organ Commodification’ (2004)
56 Rutgers L. Rev. 305 at 320
Now 17 years on for me personally, my answer to that question has changed – I now do
know what I would do to regulate surrogacy which is perhaps why I feel the current
round of law reform will leave us with a recurring dilemma.
My answer is that I would put the children first. The true measure of putting the legal
protections of the child first will be when the law can ignore judgment calls on the means
of creation of the child and provide the same protections to children born of surrogacy as
other children. It is not whether commercial surrogacy should be banned or whether
what form altruistic surrogacy should take – this is an important and necessary debate
however it overlooks the immediate need that all Australian legislatures put in place
mechanisms for transfer of parentage of children and other mechanisms of legal
protection such as accurate birth certificates.
It is not the adult needs nor the perceived norms of society which need regulatory support
in this area – indeed adults will pursue the practice regardless of its legality and
regardless of its emotional or financial cost. My suggestion is to move away from the
limitations of terminology and the constraints of thinking about surrogacy as an alternate
means of family formation to focus upon the fact that children born of such arrangements
need and deserve legal certainty and social support. I think the legal regulation of
surrogacy fails currently to address the underlying systemic issue that children deserve
protection regardless of whether they are born for someone’s profit or someone’s
The current round of law reform is positive – it moves the community in the right
direction towards clarifying issues of protection for children such as clarifying legal
parentage. My concern is that it will not go far enough. Modern bioethics is a global
phenomenon – it is very difficult to impose one universal parameter on differing private
needs of individuals – as Linda Kirkman – arguably Australia’s most famous surrogate
“Everyone is different. Some women are horrified by the idea of relinquishing a baby.
Not all people want to become parents, yet for others it is a consuming passion.”
Surrogacy is a dilemma – it will be a recurring dilemma. It need not be so if we act
altruistically by putting the children born of such arrangements first. In order that
surrogacy not to return to the legal reform agendas of Australian parliaments any time
soon it is necessary that there be:
1. a national coordinated Australian approach
2. monitoring, evaluation and research into the impact of the practice
3. legal protection of the rights of children born through surrogacy:
– without referencing those rights through adult choices as to types of surrogacy
– without distinction between persons who enter into surrogacy
4. creation of time limits for application to transfer legal parentage; a national
accurate birth certificate; central donor register; commonwealth payments