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Project titleDate Month 2014

International Surrogacy23 June 2015

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Commissioning parents, WA couple, David & Wendy Farrell

Surrogate mother, Pattaramon Chanbua, 21yo Thai national

Pregnant with twins

One foetus diagnosed as carrying Down’s Syndrome

Intended parents requested selective termination but surrogate

refused

Baby girl healthy – brought back to Australia by intended parents

Baby boy, Gammy, born with Down’s Syndrome, left in Thailand

with surrogate mother

Surrogate mother impoverished and reportedly

paid $16K

David Farrell reportedly had 22 child sex

convictions including unlawful and indecent

dealing with girls as young as 7yo

Baby Gammy

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What is international

surrogacy?

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o ‘surrogacy agreement’ - NSW

o a formal or informal agreement whereby a woman agrees to

become or try to become pregnant, or a pregnant woman agrees,

that a child born as a result of the pregnancy is to be treated as a

child of another person (whether by adoption, agreement or

otherwise) or custody or care is to be transferred to another person.

o ‘commercial surrogacy agreement’ - where a fee or reward is to be

paid to the woman who gives birth, or intends to give birth, to the

child the subject of a surrogacy agreement.

Definitions

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Surrogate mother lives in an overseas country

Can be commercial or altruistic

International surrogacy

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Traditional – artificial insemination of the surrogate with either the

intended father’s sperm or the sperm of a donor

Gestational – IVF using the intended mother’s or a donor oocyte

Types

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World Bank Indian surrogacy alone will be a US $2.5 billion by 2020

Majority of intended parents seek gestational surrogacy

2013 – about 400 Australian children born through surrogacy in

Thailand

Surrogacy arrangements in Australia estimated by AIHW 16 births

in 2010 (incl NZ)

Former Dept Immigration & Citizenship estimated in 2008 that there

were >100 cases of international surrogacy per year

Surrogacy Australia estimated in 2011, 45 Australian babies born in

the USA, 45 in Thailand and 315 in India

Scope

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1978 – first test tube baby, Louise Brown

1980 – first surrogacy contract

1985 – a woman carried the first successful gestational surrogate

pregnancy

1986 - “baby M” born in the USA

“once embryo transfer technology is developed, the surrogate

industry could look for breeders – not only in poverty-stricken parts

of the United States, but in the Third World as well. There, perhaps

one tenth the current fee could be paid women” (Corea, 1985: 215)

New?

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Australian Law

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(ACT) Parentage Act 2004

(NSW) Surrogacy Act 2010

(QLD) Surrogacy Act 2010

(SA) Family Relationships Act 1975 Pt IIB

(TAS) Surrogacy Act 2012

(VIC) Assisted Reproductive Treatment Act 2008

(WA) Surrogacy Act 2008

Legislation

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Altruistic surrogacy is legal in most states and territories

All jurisdictions prohibit commercial surrogacy arrangements

In Victoria, the regulation of surrogacy comes under the umbrella of

assisted reproductive treatment legislation so that where a woman

seeks medical assistance to carry a surrogate pregnancy the

provisions of the (VIC) Assisted Reproductive Treatment Act 2008

are invoked, however, if medical assistance is not required these

stringent requirements are avoided

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ACT – ‘commercial substitute parent agreement’ is illegal

NSW – ‘surrogacy arrangement’ is not enforceable

Qld – ‘surrogacy arrangement’ is not enforceable

SA – ‘surrogacy contract’ and ‘procuration contract’ are illegal & void

Vic – ‘surrogacy arrangement’ is void & unenforceable

Tas – ‘surrogacy arrangement’ is unenforceable

WA – ‘surrogacy arrangement’ is not enforceable

Status of surrogacy arrangement

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In NSW, ACT and Qld it is an offence for a resident of that state or

territory to enter into an international commercial surrogacy

arrangement

Penalty can be fine or imprisonment

Extraterratorial application will “give effect to the policy position

agreed by all States and Territories in Australia that commercial

surrogacy is not supported in this country. We all know that the

desire to be a parent is very powerful. That instinct is an important

part of humanity’s survival. However, in this brave new world we

must protect everybody involved, including the surrogate mother . . I

acknowledge the sadness of people who cannot realise that dream.

However, gaining access to children by circumventing local laws

and travelling overseas to engage the services of private clinics and

then bring the children back to Australia is not a practice that we as

lawmakers of this State should encourage” (Burney, Minister for

Community Services)

Extraterritorial application

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Surrogate mother may have parental responsibility for the child she

gave birth to regardless of whether she has a biological connection,

is listed on the birth certificate or is considered to have parental

responsibility under local law

At common law, the general principles relating to the welfare of

children will apply to any child born as the result of a surrogacy

arrangement

Most Australian jurisdictions have legislated to provide for the

transfer of parentage of children born of surrogacy arrangements

where certain requirements are met (those requirements won’t be

met in the case of international surrogacy arrangements)

Some jurisdictions much more prescriptive than others

Parentage

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Cth legislation

s 60HB Children born under surrogacy arrangements applies only

to domestic surrogacy arrangements where the intending parents

have already obtained a parentage order

Where surrogacy arrangements have not met the requirements of

the State or Territory concerned, applications have been brought to

the family court

Family Law Act

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Application for parentage order by intending parents of twins born to

a surrogate mother in Thailand

Intending father was the biological father

Commercial surrogacy arrangement utilised was not permitted in

Qld meaning they couldn’t obtain parentage orders

Watts J made orders giving the intended parents “parental

responsibility”

Dudley & Chedi [2011] FamCA 502

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International surrogacy

Intended father was biological father

Ryan J found that it was in the best interests of the children for a

declaration of parentage to be made

Ellison and Anor & Karnchanit [2012] FamCA 602

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Ryan J took a different approach and agreed with Watts J in Dudley

& Chedi that there is no power under the Family Law Act to make a

declaration of parentage in favour of a biological father in an

overseas surrogacy arrangement

Mason & Mason [2013] FamCA 424

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Jurisdictional issues – legislative power

Public policy considerations

Illegality of intended parent’s conduct

Exploitation of surrogates

Best interests of child

Chief Justice of the Family Court: although there is always a risk of

exploitation in commercial surrogacy arrangements, the best

interests of the children ‘will most often be served by recognising

the children born as a result of commercial surrogacy arrangements

as children of the commissioning parents”

Considerations

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Requires coordinated international regulatory response

Pending such an agreement, most appropriate way to protect the

interests of children born as a result of international surrogacy

arrangements is to enact Cth law providing the family courts with a

discretionary power to transfer parentage from the birth mother to

the intended parents where certain safeguard criteria are met

Family Law Council Recommendations

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o ACT

o offence for a person to knowingly provide any professional or technical

services to assist in achieving a pregnancy which is, or which will be,

the subject of a commercial substitute parent agreement or a surrogacy

contract.

o fine, imprisonment or both

o QLD:

• a person must not intentionally provide a professional, medical or

technical service to another person if the persons knows the other

person intends to be party to a commercial surrogacy arrangement and

the service is provided with the intention of helping the other person

become pregnant for the purposes of a commercial surrogacy

arrangement.

• fine or imprisonment.

Professional services

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o VIC

o a registered ART provider may only carry out a treatment

procedure on a woman under a surrogacy arrangement if the

surrogacy arrangement has been approved by the Patient

Review Panel.

o In deciding whether to approve a surrogacy arrangement the

Patient Review Panel must be satisfied that:

• a doctor has formed the opinion that

• the commissioning parent is unlikely to become pregnant, be

able to carry a pregnancy, or give birth; or

• if the commissioning parent is a woman, she is likely to

place her life or health, or that of the baby, at risk if she

becomes pregnant, carries a pregnancy or gives birth;

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WA

o offence for a person to provide a service knowing that the

service is to facilitate a surrogacy arrangement that is for reward.

o An exception is made for health services provided to the birth mother

after she becomes pregnant.

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Law abroad

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4 broad categories of approach:

Total prohibition of all surrogacy (eg France, Austria, Bangladesh,

Egypt)

Permit & regulate altruistic arrangements but prohibit commercial

surrogacy (eg Australia, Belgium, UK, Canada)

Permit commercial surrogacy (eg India, Israel, Russia, Ukraine,

Georgia);

Unregulated / lack of specific laws (eg Argentina, Japan, Mexico,

Czech Republic)

Majority of nations that regulate surrogacy prohibit commercial

surrogacy

Approaches

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For v Against

Commercial Surrogacy

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Right to reproductive autonomy

Right to found a family

Right to respect for human life

What is sold is not a child but a gestation service

Banning it in Australia sends couples offshore

Risk of exploitation is not as great as previously assumed

Australian government already gives tacit consent through the

apparent lack of interest in prosecuting those who enter such

agreements

Children have a right to now their genetic background

Overseas clinical practices may be less safe, desirable and

adequate

For

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× Prohibition on the sale of children / trafficking

× Exploitation of the mother

× Concerns regarding consent

× Differing international approaches to legal status of resultant child

× Commodification of human life

× Human dignity violated

× Legal parentage problems

× Disparities in race, religion, culture, economic status, education

Against

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“I think international commercial surrogacy is the new frontline in

human trafficking. We have enough anecdotal evidence to believe that

people are commissioning children willy-nilly without any proper

protections for the children or the surrogate mothers”

Judge John Pascoe

“Eurocentric portrayals of and speculations about surrogacy cannot

incorporate the reality in India, where commercial surrogacy has

become a survival strategy and a temporary occupation for some poor

rural women, where women are recruited systematically by fertility

clinics and matched with clients from India and abroad”

Amrita Pande, Centre for Social Research, New Delhi

Quotes

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“How do you think we feel about being created specifically to be given

away . . . I don’t care why my parents or my mother did this. It looks to

me like I was bought and sold . . . When you exchange something for

[m]oney it is called a commodity. Babies are not commodities. Babies

are human beings. How do you think this makes us feel to know that

there was money exchanged for us? . . . Because somewhere between

the narcissistic, selfish or desperate need for a child and the desire to

make a buck, everyone else’s needs and wants are put before the

kids[‘] needs. We, the children of surrogacy, become lost. That is the

real tragedy.”

18yo boy born through surrogacy (Smerdon et al 2008)

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Thank you