INTRO: The desire to be a parent is one that is felt by people of all backgrounds, genders and cultures, and particularly the desire to be a biological parent. As society evolves, so too does the longstanding definition of what makes a family and how a family is formed. Unfortunately, there are many circumstances that can hinder a person’s ability to fulfil this desire. At present, advances in modern science and Assisted Reproductive Technologies (ART) means that surrogacy is becoming an increasingly widespread means of family formation for those who wish to have children. However, in Australia, inadequacies in convoluted surrogacy legislation and the availability of information on surrogacy means that many Australia’s seek surrogacy arrangements overseas. This is because there are very limited circumstances in which a surrogate mother is available for altruistic reasons. Under Article 23 of the ICCPR: “The family is the natural and fundamental unit group of society and is entitled to protection by society and the sate.” Thus, the issue of inaccessibility discriminates severely against people who simply cannot found a family otherwise. As a result the implications of Australian’s seeking international surrogacy often prove to be a gross violation of rights for all parties involved.
AUSTRALIA INEFFECTIVENESS: The present defining scope of The Surrogacy Act 2010 (NSW) confines the extent to which surrogate parents are accessible, under Section 9 as follows “It is a commercial surrogacy arrangement if it involves the provision of a fee, reward of other material benefit…However, it is not a commercial surrogacy arrangement if the only fee, reward or other material benefit provided is for the reimbursement of a birth mothers surrogacy costs.” Not only is there very limited accessibility in finding an altruistic surrogate, but there are often immense difficulties in distinguishing what constitutes a reimbursement and a material benefit, particularly as the hardship of pregnancy cannot be monetarily summed. This is in addition to cases such as Re Evelyn (1998) which discourage domestic surrogacy due to the inconsistencies of legal parentage rights. At present, The Family Law Act 1975 (Cth) does not appropriately recognise parentage of children born as a result of surrogacy where state and territory acts do not apply. Thus, Re Evelyn (1998) is an example where the lack of enforcement mechanisms and binding legislation could not determine the rights between biological and commissioning parents, despite S60HB of the FLA 1975 which recognises orders of state and territory courts that transfer the legal parentage of children who are born as a result of surrogacy arrangements for the purposes of legal proceedings under the FLA.
This is because the surrogate mother has exclusive custody rights; she cannot be forced to give up the child and also has a period of reconsideration of initial intentions and the natural father has no claim to the child. In fact, research carried out by the Medical Journal of Australia in 2014 indicates that respondents did not choose to pursue domestic surrogacy in fear that the surrogate might keep the child (75%) the belief that it was too long and complicated a process (68%) and having no one of the right age or life stage to ask (61%.)
Therefore, the prohibition and inaccessibility in domestic jurisdiction forces Australian’s to travel, in particular, to developing countries where commercial surrogacy is prevalent. Not only does this create socioeconomic disparity in accessibility, but also creates a profound violation of human rights for all parties involved. By very nature of the large amount of Australian’s still visiting corrupt systems despite known potential consequences, (Surrogacy Australia Statistics show that the numbers have tripled between 08-12) reinforces the uttermost desire of individuals to found a family. As is highlighted by a 60 minutes story on David and Nicky Beard, a couple who entered into an international surrogacy agreement in Mexico, after trying to find a surrogate mother in Australia and the NZ for 4 years. A plethora of human rights violations and injustices have been brought to attention in this case: blackmailing, funds being skimmed by the corporation, medical attention refused to the surrogate mother, and lastly, they are unable to leave Mexico with officials denying their new surrogate child a birth certificate.
Moreover, this is at large facilitated by the enforceability of The Surrogacy Act 2010 (NSW) in criminalising international surrogacy agreements is limited by the nature of operations, and has not been exercised thus far. In fact, little reform or movement has taken place hitherto. At present, a child born outside Australia as a result of surrogacy arrangement is eligible for Australian citizenship by descent if, at the time of their birth, they had a parent who was an Australian citizen. The judicial system is turning a ‘blind eye’ to the fact that many Australians are indeed engaging in commercial surrogacy, particularly overseas. In March 2015, the Federal Parliament’s standing committee on social policy and legal affairs hosted two Australian roundtables on surrogacy. However, the debate was bogged in definitions and the key recommendation was a national inquiry. The ultimate decision rests with the federal Attorney-General, and no reform or conclusive decisions have been made thus far. The 500-word report highlighted the need for “a more comprehensive examination of the issues raised and a more co-ordinated response to the growth of surrogacy arrangements.” In essence, there has been an utter lack of responsiveness, only reiterating vacuous debate which is already known.
CONCLUSION: Australians reliance on surrogacy has received scant attention and no investment in education, harm minimisation or research. It beggars belief that in the face of such evidence, successive Australian governments have failed to conduct a review of failed policies and out-of-date laws to take more responsibility for enhancing access to surrogacy within Australia. Commercial surrogacy is a fast maturing industry, marketing itself principally online, thus when Australian domestic issues are left unaddressed the result is an exponential rise in exploitation overseas as the situation at present allows for this to manifest. Particularly, due to the lack of accessibility which discriminates and provides no binding enforcement mechanisms in the circumstance that domestic altruistic surrogacy is entered. Possible initiatives to address these inconsistencies include: a non-government, not for profit agency to act as a matching service with appropriate standardised financial compensation for the surrogate mother. Instead, punitive laws criminalising commercial arrangements have been introduced and have failed dismally.