Surrogacy is an intrinsic, complex subject that encompasses many issues - the lack of enforcement in domestic arrangements, illegal arrangements, human trafficking and exploitation, and the legal consequences of leaving children stateless or without guardians. The Australian surrogacy system does not effectively protect the interests of Australian stakeholders nor provide the opportunity for safe surrogacy arrangements. Due to the lack of regulation and legislative protection for enforcement surrounding surrogacy, and Australia’s complex adoption system, Australians are turning to international surrogacy arrangements. This can potentially open intended parents up to illegal arrangements, false parentage orders, and the potential for surrogate children to be left without a guardian or state. Illegal international surrogacy arrangements also leave surrogate mothers in developing nations vulnerable to human trafficking, which then may also apply to the surrogate child. Reforms to existing legislation and better educative practices are essential to creating a safer surrogacy system for Australians.
The Australian legal system defines surrogacy as “an arrangement whereby a woman (‘the surrogate mother’) agrees to conceive and bear a child, which she intends to transfer to another or others (the ‘commissioning couple’ or ‘commissioning husband’ and ‘commissioning wife’) upon the child’s birth.” (Lowe and Barry v Anor 2011). Currently, the Surrogacy Act (Qld) 2010 is the leading piece of legislation used to regulate the area of surrogacy in Queensland. It outlines the legal process, including mandatory counselling, birth registration, and parentage order applications. Commercial surrogacy, where the surrogate mother receives payment, is illegal in Queensland, however, in accordance with the Surrogacy Act (Qld) 2010, altruistic surrogacy is legal pending certain requirements (Australian Government Social Services, 2018). In a commercial arrangement, the surrogate mother receives financial payment as a reward, in addition to reimbursement for medical expenses. In an altruistic arrangement, the surrogate receives no benefit or financial reward other than reimbursement of medical costs. It is key to note that surrogacy agreements are not enforceable; the birth mother does not have to give up the child, and the intended parents do not have to care for it.
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The vacancy of legal enforcement is, ironically, legislatively enforced under section 15 subsection 1 of the Surrogacy Act (Qld) 2010. As agreements are not enforceable, individual stakeholders are not protected. Intended parents are left with no guarantee that the birth mother will comply in a parentage order and vice versa. The only enforceable part of the surrogacy agreement is reimbursing the surrogate mother for her medical costs. Thus, the birth mother could, wholly legally, and in accordance with section 15 (i) of the Surrogacy Act (Qld) 2010, relinquish her right to be reimbursed for medical expenses and keep the child by not consenting to a parentage order. By introducing a contractual system for altruistic surrogacy that is enforceable in a court of law, this loophole could be eliminated.
Reforms to the Surrogacy Act (Qld) 2010 to add an enforceable arrangement would best protect both stakeholders. This inclusion of a contractual arrangement has not yet been discussed, as there is a clear issue. For a valid contract, there must be an intention to create legal relations, offer, acceptance, and consideration. If a surrogacy arrangement in Queensland was to be contractually valid, there would have to be consideration for the birth mother; in other terms, a benefit, which would then mean that the arrangement would meet the conditions for a commercial surrogacy, which is illegal. To resolve this, a contractual agreement should be created wherein there is consideration for the birth mother, but it does not extend beyond the conditions that an altruistic arrangement allows. The consideration for the birth mother should only be the reimbursement of medical fees - a condition that is already legally enforced. This would uphold a contractual agreement that met the conditions and was legally valid, but did not breach the conditions of altruistic surrogacy.
This would not be the first time that reforms and legislative reviews were undertaken for surrogacy - the Family Law Council produced a report on Parentage and the Family Law Act, reviewing and making recommendations for the improvement of the current surrogacy system in 2013 (ABC, 2018). Additionally, in 2016, there was a national inquiry into surrogacy matters and, in 2018, a follow up report by the Federal Government (News Corp Australia, 2018). There is clearly an understanding in federal government that national legislative reforms are necessary to create fair and equitable domestic surrogacy agreements, and the aforementioned contractual recommendation would be able to fulfill that need.
Arguably, surrogacy in itself goes against the rights of a child. The United Nations Convention on the Rights of the Child, which has been ratified by Australia and adopted into effect on the 20th of November, 1989 (UN Human Rights Commissioner’s Office), protects the many rights globally recognised for children. Article 7 states that the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents. This was created eleven years after the first child was conceived through artificial reproductive technology in Britain, when the area surrounding surrogacy lacked legislative clarity and parameters (Turnbull Hill Lawyers, 2017). However, in the current scope of surrogacy arrangements, it could be argued that the convention’s relation to surrogacy arrangements have not evolved with reproductive technologies and individual state’s legislation. It is important, however, that the sentiment of article seven remains within surrogacy arrangements, and that, where possible, children have access to knowledge of their origins and nationality.
While Australia’s domestic surrogacy laws continue to cause issues and concern to intended parents, people are turning to international arrangements and, as Justice Bryant acknowledges, Australians are among the world’s most enthusiastic clients (The Australian, 2017). One of the largest legal issues to arise out of international commercial surrogacy, especially in countries that Australians frequently go to (Thailand, India, Cambodia), is reproductive trafficking. In many illegal international agreements, people smugglers move women and children in utero across borders to give birth, where they can then smuggle the child to the intended parents. There are many examples of this happening, such as Indian women moved to Nepal (Morning Edition, 2015), and Kenyan women flown to India for IVF and then returned to Nairobi to give birth (The Conversation, 2017).
The issue of reproductive trafficking breaches international treaties on human rights, while exploiting and endangering the women involved. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, was adopted by the United Nations General Assembly in December 2003 (United Nations, 2003). It comes under the United Nations Convention against Transnational Organized Crime, and was the first global, legally binding document to fight against human trafficking. Illegal surrogacy arrangements go against the nature and international law outlined in this treaty.
Additionally, section 270 and 271 of the Criminal Code (Cth) 1995 prohibit human trafficking in Australia, while section 71 of the Criminal Code (Cth) 1995 further criminalises people smuggling (where a person facilitates or organises the illegal entry of another person into a foreign country, Australia or not, for a benefit). This creates a legislative conflict. An international surrogacy agreement is one where one party arranges a second party to conceive and bare a child to then be transferred back into the country. When people smugglers move surrogate mothers for the sale of children, they are are moving another person (the baby in utero, who, if not of that nationality, is technically illegal), for a benefit (the payment of the intended parents). Additionally, when the baby is then taken back to the intended parent’s country with forged parentage orders or false documentation, it becomes child trafficking. The issue is that often, Australian intended parents aren’t aware of the illegalities of the arrangement.
Such was the case of Tammy Charles-Davis, who ran “Fertility Solutions”, a seemingly legal surrogacy clinic that linked intended Australian parents with Cambodian surrogates. Ms Charles-Davis was sentenced to 18 months in prison for illegally moving Cambodian women across borders to then deliver children to Australian parents (who never received legal parentage orders) (ABC News, 2017). Consequently, the Criminal Code (Cth) 1995 section 73 would impose up to 20 years imprisonment, as the child in utero was an illegal citizen, who was then smuggled to another country, and she was involved in illegally transferring the women to Thailand. The Australian intended parents were paying Ms Charles-Davis $50,000 for a surrogate child, unaware of the gross injustice that was occurring (ABC News, 2017). Intended parents may not have been aware, however the Surrogacy Act (Qld) 2010 criminalises paying a surrogate mother, domestic or international (Turnbull Hill Lawyers, 2017). This is an example of how a lack of education can result in intended parents unknowingly committing a crime, while their only intent is to try and start a family, and reinforces the importance of stronger education programs for intended parents.
In instances such as the circumstance the children born through Ms Charles-Davis’ clinic were left in, children are left stateless and without any legal guardians. In the aforementioned case, the Cambodian government established regulations wherein intended parents had to prove a genetic link to the surrogate born child, and prove to the court that they would be fit parents. If the courts ruled they were capable of caring for the child, they then had to process legal documents/parentage/passports, and an array of bureaucratic process to bring their child back to Australia. When children are left in legal limbo for periods of time it may impact on their developmental functioning and wellbeing, and there is a need for an internationally recognised protocol to get children out of these situations if they arise (Human Rights Commission Australia, 2014). Alternatively, a legal issue arises when countries are hubs for international surrogacy, and then decide to close down all programs and overnight legislate against it (as was the case in Thailand). This leaves all stakeholders involved in surrogacy programs at risk of breaching domestic and international law, when 24 hours previous everything had been legal. If a country decides to legislate against surrogacy, then there should be a grace period for current legal surrogacy arrangements to be fulfilled.
There are a number of measures that could be taken to improve Australia’s “broken” surrogacy system. Firstly, independent legal advice should be sought by all stakeholders to ensure compliance with Queensland’s conditions for altruistic surrogacy (the first being to seek legal advice), and so that each party is protected. Also, better education for Australians seeking to start families through alternative methods. By ensuring proactive campaigns and insightful resources are available to intended parents when they first begin their fertility journey, they can better make educated decisions and be aware, legally, of what they’re able to do. This would prevent circumstances where intended parents unknowingly fund illegal surrogacy arrangements, or attempt to start a family through illegal means.
Furthermore, stronger reforms and frameworks surrounding fertility clinics and surrogacy foundations are required to effectively regulate the sector. Checks and balances must be put in place to hold clinics accountable and transparent - this may be through compulsory annual openings, where governmental regulatory bodies can look into their international trades and practices and assess whether all surrogacy arrangements are legal. Additionally, it may be through stronger legislation that acts as an effective deterrent to those trying to frame illegal international surrogacy arrangements as legal. Finally, reforms should be made to leading Australian legislation around this body - namely, the Surrogate Act (Qld) 2010. Specifically, amending items such as section 15 which discusses the legalities surrounding enforcement of surrogacy arrangements. As there is currently no enforcement for birth mothers to abide by their agreement in an altruistic surrogacy arrangement, an introductory contractual framework that required both parties to sign and note all conditions surrounding the arrangement (including parentage orders) would provide better protection for intended parents. This contract could be made valid while respecting the requirements for altruistic surrogacy by making medical reimbursement the birth mother’s contractual consideration. Ultimately, stronger reforms and campaigns to better protect all stakeholders in surrogacy agreements will create a safer and stronger option for intended parents that allows them to remain within the legal bounds of the sector.
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