The Australian Law Reform Commission (ALRC) is conducting a review of future of surrogacy in Australia. Its report will be tabled in Federal Parliament by mid-November. The ALRC is strongly in favour of legalising commercial surrogacy – paying women to bear children for a commissioning parent or parents.
It believes that the patchwork of state laws currently regulating the practice is “confusing, restrictive and not fit for purpose”. Careful regulation would be enough to protect surrogate mothers, intending parents, and children from exploitation.
The legal cloud hanging over surrogacy makes gathering statistics difficult. But the ALRC estimates that about 20 per cent of surrogate births take place in Australia and 80 per cent overseas. In 2023-24, it estimates, 361 children were born through surrogacy arrangements overseas.
Although these numbers seem small, globally surrogacy is a huge and growing industry. According to one analyst, Spherical Insights, the market in 2023 was US$15 billion and will rise to $100 billion by 2033.
As an anthropologist who is a warm supporter of surrogacy has observed, “Divorce rates may be on the rise and alternative family forms may be flourishing in the United States and elsewhere, but surrogacy takes the deconstruction of the very concept of family to a new height. It brings conception out of the bedroom and into the laboratory and marketplace.”
‘My Bun, Her Oven’ was her sardonic tagline for the surrogacy industry.
What is driving the dramatic rise in demand for babies? There appear to be two factors.
The first is delayed parenthood. Women who are marrying (or partnering) later account for about three-quarters of the market.
The second is same-sex couples and single parents, who make up the fastest growing segment of the market, according to the forecasting group Mordor Intelligence.
The ALRC’s model for legal commercial surrogacy is consistent with these global trends. It concedes that an intending parent or parents should have a “reason” for accessing surrogacy, but almost any “medical, biological, or psychological reason” will do.
Nearly all coverage in the media about surrogacy highlights the heartache of infertility and the joy of parenthood. There’s no disputing this, but what gives an adult – any adult – a right to a child?
What about the right of a child to be born into a natural family and raised by their biological parents? That is the ideal way for human beings to begin life.
Let there be no mistake. The ALRC’s review is not a pro forma harmonisation of inconsistent regulations; it is revolutionary. Australian history has its dark spots, but never before has the sale of human beings been legalised.
Opposition to commercial surrogacy is not a minority view or Catholic evangelising or reactionary kneejerk conservatism. Most countries do not regulate surrogacy at all.
But of those which do, most ban commercial surrogacy. Some countries – like India, Cambodia, and Thailand – have experimented with “wombs for rent”, but backtracked after a succession of abuses. It is banned across Europe and Asia.
Italy has even declared it a “universal crime”, meaning that Italians who resort to surrogacy abroad can still be prosecuted.
Tellingly, the foremost spokesperson for the rights of women, the United Nations Special Rapporteur on Violence against Women and Girls, has been scathing in her condemnation about moves to commercialise surrogacy.
“Surrogacy arrangements can amount to or resemble slavery, as they place surrogate mothers in a position in which any or all of the attributes of the right of ownership are exercised over them,” said Reem Alsalem, a Jordanian consultant on gender and humanitarian issues who has been the special rapporteur since 2021.
She couldn’t have been clearer in a recent report. She described surrogacy as “a system of exploitation and commodification of women and children which reinforces patriarchal norms and subjects them to economic, psychological, physical, and reproductive violence, including in connection to slavery and human trafficking.”
Her solution to the legal conundrums surrounding surrogacy is simple and clear. It cuts through the palaver about rights and unmet needs and legislative consistency. It is abolitionist: eradicate and prohibit surrogacy in all its forms. Later this month, a national conference on surrogacy in Melbourne will tackle the prospect of legalising commercial surrogacy.
“In the Name of the Child: the Perils of Surrogate Motherhood for Mother and Baby” features prominent critics from overseas and Australia. They include Reem Alsalem; Olivia Maurel, a French woman born of surrogacy who is the spokesperson for The Casablanca Declaration; Dr Xavier Symons, of the Plunkett Centre at Australian Catholic University, and the feminist writer Dr Renate Klein.
The organiser is ARMS Victoria, an association for “relinquishing mothers”. It was set up in 1982 to represent the more than 250,000 Australian mothers whose children were adopted out at birth from the 1950s to the 1990s. Now it is also a fierce opponent of commercial surrogacy.
Lily Clifford, ARMS founder and spokesperson, told The Catholic Weekly that surrogacy is creating a new generation of grieving mothers.
Deliberately severing the bond between mother and child, she says, is “a shocking and wicked thing to do”. She knows this from her own lived experience; as a 17-year-old mother, she relinquished her child forever. Clifford’s group’s submission to the ALRC review claims that surrogacy should never be legalised.
“At the centre of every surrogacy birth is a relinquishment, just as at the centre of every adoption was a coerced relinquishment,” ARMS declared.
“To avoid repeating history, surrogate motherhood agreements must be categorically rejected in law, practice and policy, to protect both women and children from systemic harm and our society from becoming a market for the buying and selling of children.”
For more information on the National Conference on Surrogacy to be held at the campus of Australian Catholic University, in Fitzroy, on 21 and 22 August, contact Jo Fraser at jofraser@armsvic.org.au or ring 0400 701 621.
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