The Pope’s cruel take on surrogacy

The Pope’s cruel take on surrogacy

“I’m beautiful in my way ’cause God makes no mistakes
I’m on the right track, baby, I was born this way”

Lady Gaga

I am outraged at the steps by the Pope’s call to stop surrogacy and be critical of LGBTQIA+ people.  It is no surprise, but it still saddens me.

On Monday 8 April 2024, the Pope delivered a declaration of the dicastery for the doctrine of the faith called Dignitis Infinita, called for a worldwide ban on all surrogacy, and was critical of transgender, intersex and non-binary people.

The Pope’s position on surrogacy reflects an anti-surrogacy seminar held at the United Nations in New York in March, hosted by the Papal Nuncio to the UN, and an anti-surrogacy seminar held at a Vatican affiliated university in Rome over the weekend- which again called for all surrogacy to be banned.

At the same time, the Pope has claimed sovereign immunity to defend a claim brought against him from vicarious liability arising from an Australian priest who engaged in child abuse.

Under the heading “Surrogacy” this is said:

“The church also takes a stand against the practice of surrogacy through which the immensely worthy child becomes a mere object.”

“On this point, Pope Francis’ words have a singular clarity –the path to peace calls for a respect for life for every human life, starting with the life of the unborn child in the mother’s womb which cannot be suppressed or turned into an object of trafficking.  In this regard, I deemed deplorable.  The practice of so-called surrogate motherhood which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs.  A child is always a gift and never the basis of a commercial contract.  Consequently I express my hope for an effort by the International community to prohibit this practice universally.  First and foremost, the practice of surrogacy violates the dignity of the child.  Indeed, every child possesses an intangible dignity that is clearly expressed albeit in the unique and differentiative way. 

At every stage of his or her life, from the moment of conception at birth, growing up as a boy or girl and becoming an adult because of this un??livable dignity, the child has the right to have a fully human and not artificially induced origin and to receive the gift of a life that manifests both the dignity of the giver and that of the receiver.  Moreover, acknowledging the dignity of the human person also entails recognising every dimension of the dignity of the conjugal union and of human procreation.  Considering this, the legitimate desire to have a child to have a child cannot be transformed into a right to a child that fails to respect the dignity of that child as the recipient of the gift of life.  Surrogacy also violates the dignity of the woman – whether she is coerced into it or chooses to subject herself to it freely.  For in this practice, the woman is detached from the child growing in her and becomes a mere means subservient to the arbitrary gain or desire of others.  This contrasts in every way with the fundamental dignity of every human being and with each person’s right to be recognised or always individually and never is an instrument for another.” 

What a load of rubbish.  There is just terrible, terrible stuff and really disgraceful.  A ban will not work- and has not worked, as seen in Queensland. We had a ban for 22 years. It failed. My first surrogacy client was in 1988 – when the ban started. Surrogacy continued throughout the ban.

Surrogacy done well is a process of love. It is the best of humanity- the love by the intended parents to have a child and the love by a surrogate to give the gift of life. The surrogate is loved and cherished, for being able to give the gift of life, without which the intended parents would remain childless. At the centre of the journey is the child- who is both loved and cherished, as are children conceived the old fashioned way, or through IVF.

No one should be ever be advocating for a Wild West when it comes to surrogacy.  Surrogacy should always be regulated in some form. Not to do so is put at risk the human rights of all involved. But to advocate for a complete ban is fanciful, and interfering with the legitimate desires of those who seek to become parents, a human right that has been recognised under international law.

Surrogates should never be exploited and should never have the opportunity to be exploited.  Similarly, intended parents should not be exploited and any donor who has provided genetic material should not be exploited – or their children – and above all, the child who has been born should not be exploited.

The International Women’s Health Coalition and Human Rights Watch some years ago set out a series of human rights recognised under international law that can be evoked in this nascent area of consideration of what human rights are impacted.

What the Pope is saying is so extreme that a woman who has Turner’s syndrome (when one of the x chromosomes is missing or partially missing) or MRKH syndrome – which she’s born with and means she has no uterus – means that she will forever be denied the ability to become a mum – without the assistance of someone else helping her to become a parent through surrogacy.  If her mother or her sister offers to be her surrogate – well, tough luck – you can never become a mother according to the Pope and the Church. This is because the surrogate,  even if she’s your mother, even if she’s your sister is somehow being exploited.

What an absolute utter disgrace!  The call is out of complete touch with reality. The New Zealand Law Commission got it right,  when they endorsed the position of researchers:

“Unless a state is prepared to police the bedrooms of the nation, surrogacy arrangements cannot effectively be outlawed, only driven underground.”

This is because traditional surrogacy with an at-home insemination occurs there.  So, unless we have the prospect of police or worse, priests, going into peoples’ bedrooms and we know we’ve had problems with that in the past – invading their privacy and saying “you cannot undertake surrogacy here” – this idea that surrogacy can be banned is fanciful, and completely out of touch with reality.

What is a better idea is to focus on the human rights of all involved and yes, everyone involved in this process should have dignity and have their dignity preserved and their human rights preserved – particularly the person who is carrying the child, the surrogate, and particularly the person who is born from this process – the child.  But the human rights of all the others shouldn’t be ignored either.

Some years ago, I was concerned with the first draft of what became the Surrogacy Act 2019 in South Australia was being written.  That focused very much on the human rights of the surrogate and that was about it.  But there was nothing in there about the human rights of the child, other than the formal process.  And there was nothing really about protection of the intended parents.

So, I was really happy when the then South Australian Attorney-General Vickie Chapman agreed to the suggestion that I made in my submissions, that there should be a provision in the South Australian Surrogacy Act that said that the human rights of all the parties, including the child, be respected – and thus it became a principle of that Act.

Having a solid human rights framework with solid legal guarantees about who is impacted and how is the way to regulate surrogacy, not to ban it.

And for the children who have been born through surrogacy, some of whom are now adults, will they be accepted for who they are? Or are they forever to be condemned and cast aside due to the “deplorable” actions of their parents?

Transgender, intersex and non-binary people

And if that wasn’t enough – on went the Pope also talking about gender theory.  Not talking about transgender people, but without any adequate academic citation In talking about gender theory, whose scientific coherence, according to the Church, is the subject of considerable debate among experts.  Well, actually, for the last many, many years experts have recognised that transgender people exist as in fact they have always existed and that they ought to be protected and recognised. Slowly the world has been coming around to recognising that transgender people exist – as do intersex and non-binary people.

Then, on goes this publication from the church saying about sex change, the dignity of the body cannot be considered inferior to that of the person as such and moreover the body participates in that dignity as it is endowed with personal meanings – particularly in its sext condition.  It is in the body that each person recognises himself or herself as generated by others and it is through their bodies that men and women can establish a loving relationship capable of generating other persons.

Despite it being recognised internationally that the human rights of LGBTQIA+ people include the right to found a family, they are excluded by the Vatican. But given its history in this area, that should be no surprise.

Well of course the Church has always against LGBT relationships, against sex outside of marriage, against contraception, and against IVF.

But leaving all those aside.  The church then goes on to say – “it follows that any sex change intervention as a rule risks threatening the unique dignity the person has received from the moment of conception.  This is not to exclude the possibility that person with genital abnormalities that area already evident at birth or that develop later may choose to receive the assistance of healthcare professionals to resolve these abnormalities.  However, in this case such a procedure would not constitute a sex change in the sense intended here”.

What this is clearly saying is that the Church is against transgender, intersex or non-binary people and putting people into two categories – male or female.  Despite the science saying that not everyone fits within those two categories, and as the High Court of Australia said so pithily: “Not all human beings can be classified by sex as either male or female”, the ideological blinkers are on.  According to the Church, trans, intersex and non-binary people can have surgery for “genetic abnormalities” to resolve them, the rest of it – you’re stuck with for the rest of your life.

In those examples given, the woman who has Turner’s syndrome or MRKH syndrome will, in the eyes of the Pope, never be able to enjoy the gift of parenthood.

How cruel.

Things to Read, Watch & Listen

Surrogacy – Ten Lessons I Have Learnt Since 1988

Our director and award-winning surrogacy lawyer, Stephen Page, presented a paper titled “Surrogacy – Ten Lessons I Have Learnt Since 1988” at the 2024 North Queensland Law Association Conference in Townsville.

Surrogacy in Mexico

In this video, Page Provan Director and award-winning surrogacy lawyer Stephen Page deep dives into all the crucial information you need to know about Surrogacy in Mexico.

Surrogacy in Australia or US: Which is the Best?

In this video, Page Provan Director and award-winning surrogacy lawyer Stephen Page, breaks down the surrogacy process in Australia versus the United States. 

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