Surrogacy is a pro-life issue that is going to need more attention in the coming months because inquiries into changing our surrogacy laws are underway at the request of the New South Wales and Federal governments.
Key to each of these inquiries is whether Australians should be allowed to engage in commercial surrogacy, that is, should they be able to pay a woman lots of money so she will bear a child for them?
Under NSW law, a surrogate mother is not allowed to be paid a commercial fee but only allowed to be reimbursed for medical and travel expenses and whatever time she needs to take off work.
However, changes to our surrogacy laws made under last year’s so-called “equality” legislation have made it easier for NSW residents to engage in commercial surrogacy overseas without consequences because even if the law is broken, a court in NSW is still able to give parenting rights to the purchasing parent/s if it is in the “best interests of the child.”
But the “best interests of the child” test is a tricky one here because surrogacy so often involves exploitation.
We know that many women agree to be surrogates in order to lift themselves out of poverty, or to find a way to care for their children after fleeing a violent spouse or are in other vulnerable situations.
In this way, the changes incentivise NSW residents to use more vulnerable women as surrogate mothers, because in doing so, it will be more likely that a court will view it is not in the best interests of the child to go back overseas to be given to a mother in a precarious situation.
There is also the well-known risk that overseas surrogates are not acting voluntarily but are rather victims of human trafficking. In a hearing in NSW Parliament that occurred about a fortnight ago, it was confirmed that one of the overseas clinics used by NSW residents had been found to have 97 women trafficked into “surrogacy slavery.”
NSW Anti-Slavery Commissioner James Cockayne told that same hearing that the central challenge in these situations for the surrogate mother is informed consent. “Often there are risks of manipulation, coercion or even fraud that might taint that consent,” he said.
When NSW residents break the law and use these women in order to gain access to a child, they put the courts in a very difficult position. The court is presented with a baby or young child who has been brought here from overseas, often with a surrogate mother from a developing nation. Sometimes, the identity of the surrogate mother is known but often, her identity is kept confidential by providers who want to ensure that their operations are not subject to too much scrutiny.
What is a court to do?
The opaque nature of some of these arrangements mean that returning the child is rarely an option for the courts, so the choice becomes between putting the child into the foster system or rewarding the bad behaviour of the purchasing parent/s and granting them custody.
It really is a no-win situation, especially for the innocent young child.
A recent illustration of how bad this can get occurred in the UK just last month. Two women—both aged in their 60s—entered into an arrangement with an agency in the Turkish Republic of Northern Cyprus which used women from the Ukraine as surrogate mothers.
These UK women ordered “twins” who were genetically related but born via cesarean on the same day to two different surrogate mothers. The purchasing couple paid around £120,000 for this arrangement (it is likely most of these funds went to the agency and not to the mothers.)
Because the children were born of donor eggs and sperm (the women were too old to provide their own eggs), the UK did not recognise them as children of these women. The Cyprus government did not recognise them as citizens, nor did the Ukrainian government. They were stateless.
It was four years before these women and the children could return to the UK and make an adoption application, which the court ultimately granted.
Here’s the thing.
At the time of the adoption, one of the women was already in her 70s and the other “fast approaching that age,” according to the court. And they had just been named mothers of four-year-old “twins.”
What type of life will these children have, given that—as the report of the Children’s Guardian in the case recorded—one of the women will be in her 80s and the other in her mid-70s when the kids are in their early teens? These women “had not given any consideration of the impact on the children of having parents who are so much older and all the attendant age-related health issues that follow,” the Children’s Guardian wrote.
As the inquiries into, and the debates around, commercial surrogacy progress advocates will want you to see loving, prospective parents here in Australia who are being given a great gift by women in other countries who really want to do this for them.
Please don’t be fooled.
When the debates come up, remember the trafficked women or the four-year-olds who will soon be primary carers for women old enough to be their great-grandmothers, and raise your voice for them.