Surrogacy – Is it Time to Legalise Commercial Surrogacy in Australia? Chief Justice of the Family Court of Australia, Diana Bryant, Says “Yes”

Speaking at the University of Queensland over the weekend, Chief Justice Diana Bryant referred to two recent tragic events in surrogacy which made the news as being examples of situations which supported the argument that commercial surrogacy arrangements in Australia should be immediately legalised and be made the subject of proper regulation by legislation to properly control the process.

Her Honour’s comments followed the highly pubilicised “Baby Gammy” case, where a man with a chequered past, was, with his Wife, permitted to enter a commercial surrogacy arrangement with a woman in Thailand. Twins were born and one was affected by Downs Syndrome. The Downs Syndrome child was left behind with an ill-equipped and unfinancial mother. Whilst subsequent crowd funding may have assisted, the welfare of that child remains a concern as does the child who came to Australia, whose right to enjoy a relationship with siblings, connect and learn about their family of origin and whose future outlook (and likely future mental health) may well be affected by misguided acts of the parents.

Her Honour also referred to a case out of India, where a commercial surrogacy arrangement was entered and healthy twins were born, however, one twin was not brought back to Australia because the parents already had a child of that sex.

Again, foreseeably, a raft of critical and concerning child welfare concerns arise.

Her Honour advocated that Australia could enact a system which would be able to end or avoid similar outcomes and unethical arrangements occurring overseas.

Her Honour said: “If we allow it in Australia, we then can regulate it and ensure that it’s done on ethical terms.”

“I think the Government could eliminate some of the worst aspects of international surrogacy by devising some ethical requirements that need to be met before intending parents are permitted to bring a child back into Australia,” she said.
As it stands, the law in Australia makes it a crime to pay a woman a commercially negotiated sum in order to have her carry a child for someone else, except in the Northern Territory where there are no laws concerning surrogacy.

The limit of the contributions a person can make to such a person, is a reimbursement of her expenses, with effect that the majority of uncommercial arrangements are entered with and for the benefit of family members and extremely close friends who have bonds made sure by means other than financial.

The threat of prosecution in Australia for entering an overseas arrangement involving commercial payments, has not deterred thousands of Australian couples from going overseas to pay a surrogate mother.

The problems arise as soon as an unforeseen event happens – it’s unregulated, so pretty much, anything goes. Australians are being exposed to unethical behaviours but also are behaving unethically and inappropriately.

Justice Bryant said when they arrived home with a baby, there were many ethical and legal dilemmas, especially when an egg donor had been used.

For our part, we think she’s right. Anything which could remove risks (short and long term) for children, abandonment, separation from siblings, their right to know about their proper heritage….and all those like concerns and issues which could arise, really do mandate this happening. The sooner the better.

If arrangements are entered in Australia, by Australians, it would ensure that children born in Australia were able to be assessed and supported by Australian child welfare authorities, be born as Australian citizens. Likewise, pregnancies can be managed in countries where adequate genetic and early trimester testing can occur, so as people make informed choices.

As Her Honour indicated, a proper system should limit unethical behaviour and unscrupulous operators from profiteering upon people desperate for children at any cost.

If this is something you are passionate about, make sure you write to your local member of Federal Parliament to ask him or her to confirm support for a bill on the topic being passed into law.

Likewise, if you have a surrogacy question, we’d be happy to help.

Thanks for reading.

Dean Evans