Another urgent pro-life issue

In an address to the National Press Club last week, Mordy Bromberg, president of the Australian Law Reform Commission argued that its review of discrimination in religious schools was not compromised, despite Justice Stephen Rothman—the retired judge who led the review—saying that he thought the report had been constrained by the terms of reference set by then-Attorney-General, Mark Dreyfus.  

Well, Justice Bromberg’s defence of the ALRC will be put to the test in the coming months, following the ALRC’s release of an issues paper on surrogacy, published following the commission being asked by Dreyfus to inquire into those laws. 

It is one of three current inquiries into the liberalisation of commercial surrogacy, as the relentless push to legalise the practice unfortunately becomes like a game of whack-a-mole. 

Disappointingly, the ALRC’s issues paper does not appear promising for women and children caught up in this mess, because it appears to take as its starting point the idea that surrogacy is a good or at least morally neutral exercise, that there are too many restrictions on it, and governments should be looking to make it easier. 

To do this, it mischaracterises applicable human rights, paper over the significant abuses already occurring in Australia and overseas and engages in some strange logic. 

For example, in the section of its issues paper about human rights, the ALRC correctly identifies that the UN Convention on the Rights of the Child provides for the right of the child to be cared for by their parents. However, it does not even mention the removal of the child from the mother who carried them for nine months as a potential violation of this right. Instead, it asserts that existing barriers to the intended (or purchasing) parents obtaining legal parentage “risk violating these rights as they prevent the child’s social family from being recognised as their legal family.”  

I’m not exactly sure who or what a “social family” is but I am certain that it was not what the framers of the Convention of the Rights of the Child had in mind when articulating the obvious idea that a child should be cared for by their parents. I would even go further to say that what the ALRC describe as “barriers” to purchasing parents getting legal rights over the child were put in place to protect the right of the child to be raised by their parents. 

Another example is how the ALRC deals with the right “to be free from slavery and forced labour.” The issues paper casually states that “in some places, where is less regulation, more financial inequality, and women’s decision-making capacity and access to information is limited, exploitation risks are greater.” This description significantly understates the reality, which is that women are being trafficked even in developed countries. For example, less than two years ago, eight staff members of the Mediterranean Fertility Institute in Greece because the clinic was trafficking women from Eastern Europe as surrogates and engaging in illegal adoptions. There were 60 Australian families using that clinic at the time. 

And the paper does not even mention the Baby Gammy scandal, where a boy born with Down Syndrome was left in Thailand by his intended Australian parents (one of whom was a convicted paedophile), while they brought his twin sister Pipah home. 

The paper also suggests decriminalisation and legalisation of commercial surrogacy as options, because criminalising commercial surrogacy does not appear to be “achieving its objectives of deterring behaviour and minimising harm,” and Australians continue to travel overseas to engage in commercial surrogacy arrangements (375 babies were born overseas to Australian commissioning parents in 2023).  

That people continue to break the criminal law is not necessarily a reason to abolish it; indeed, it would result in anarchy. 

Notably, the ALRC did not suggest law enforcement as an option, even though it noted that there has never been a prosecution for commercial surrogacy. Perhaps the reason the law is not acting as a deterrent is because there appears to be a complete unwillingness to enforce it. 

Submissions for the ALRC inquiry close in less than a month, so there is no time to lose in raising our voices for vulnerable women and children.