You are wrong, Prime Minister

You are wrong, Prime Minister

At the outset I want to say that I have the highest respect for the highest elected official in the land, our Prime Minister, whoever it might be, and currently Tony Abbott.

However, I cannot let the Prime Minister’s statements made this morning on Today stand. When asked about the situation of Australian parents who had surrogates in Thailand currently pregnant and who might be stuck there, Mr Abbott responded in effect that he could understand that people might be desperate to have children, but even in their desperation they need to obey the law there and the law here.

As a practising lawyer who has given advice to clients to obey the law time and time again, I can say that the Prime Minister, in so far as he is suggesting that that these intended parents may broken the law he is wrong and has missed the point. All of these parents have complied with the law in Thailand. Many of them have complied with the law in Australia. Even if the parents have not strictly complied with the law in Australia, the children are entitled to Australian citizenship. Australia should not fail its most vulnerable of citizens, its infant children even those born through surrogacy overseas.

The law here

In three jurisdictions, Queensland, NSW and the ACT, there is a clear ban on those undertaking commercial surrogacy overseas. It’s not so clear as to situation in WA, and in Victoria, SA, NT and Tasmania it is legal to undertake commercial surrogacy overseas.

So there are plenty of Aussies who are quite legally undertaking surrogacy overseas.

The law there

Put bluntly, Thailand is currently the subject of a military dictatorship. The rule of law is now via decree- which became obvious last Thursday- when the rules of surrogacy changed. Before that- surrogacy was legal simply because there were no laws in Thailand concerning surrogacy. As I have written in the last few days, now it is almost impossible for foreigners to undertake surrogacy in Thailand.

Imagine playing for Mr Abbott’s beloved Manly Sea Eagles, and halfway through the game the umpire says that a goal was disallowed because the goalposts had been moved. That is precisely what has happened to these parents in Thailand. Except that we are not talking about a game of football, but about something much more precious- the life of a child. 

Therefore there are Aussies who decided, whatever State they came from here who acted perfectly legally in Thailand. Thailand has changed the rules on them- and they are now the meat in the sandwich. They are worried:

  • is their surrogate alright?
  • are their unborn babies alright?
  • can they collect their babies?
  • will the surrogate be charged with child trafficking?
  • will they be charged with child trafficking?
  • will they be allowed to take the baby to Australia?
  • if the baby is not allowed to be taken, will the baby end up the rest of its like in a Thai orphanage?

The Australian government needs to take action for these citizens. The Gillard government did the same- quietly and behind the scenes in 2012 when the Indian government changed the rules halfway through – and left some intended parents in a similar pickle (except that the Indian government did not threaten to charge people with child trafficking offences). 

Above all, whatever the sins of the adults, it’s all about the children

Children will be born as a result of previously made arrangements, these children are entitled to Australian citizenship. Australia quite rightly prides itself on being a beacon of democracy, fairness and a model international citizen. Australia needs to stand up for these children. To fail them now and allow them to spend the rest of their lives in Thai orphanages would be a completely avoidable disaster. It would be morally wrong.

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