I want to talk to you about commercial surrogacy in Australia – and the sort of ethical jujitsu couples wanting to have children by those means need to resort to because our laws are ill-defined and unsympathetic.
At the moment in Australia, it’s only possible to use ‘compassionate surrogacy’ – a friend or relative may donate eggs or carry a child to term for you – if your supervising doctor agrees that every other available avenue has been pursued.
It is illegal, however, to either export your own fertilised eggs (for any purpose) and it’s illegal to resort to ‘commercial surrogacy’ where you either buy another woman’s eggs or pay her to carry the child in utero.
Listen: Sally Obermeder spoke to Mia Freedman on the No Filter podcast about finding a surrogate. (Post continues…)
The numbers we’re talking about aren’t high. In Australia, each year approximately 300 Australian couples want to use commercial surrogacy. This is legal in several countries, including the U.S. The problem is that since 2004 it’s been illegal to claim a child produced through commercial surrogacy as your own – even when that child is the product of one or more of the parents’ genetic material.
Last week, a case appeared before Family Court Chief Justice Diana Bryant where parents of children aged four and two sought to have them legally recognised. The request was denied. The children fell into a ‘legislative vacuum’ with Bryant ruling, “There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the act … Further, the mother is not even the biological mother, and thus is even less likely to be the legal parent.”
The law is an ass. And it’s not even one law.
At the moment, each state has the power to regulate surrogacy – and generally, it’s seen as too hard. Saying ‘No’ is the simplest solution and with such small numbers being affected, it’s also the most politically expedient.
But without sensible, humane laws, Australia opens itself to being a predator and an abuser. You can see for some of the procedures - notably receiving a donor egg, or using the father’s sperm - it’s possible to hide the commercial part of the transaction. Accordingly, we have the example of baby Gammy born with Down syndrome to a Thai mother in 2014 – he was left in Thailand by his West Australian parents, who took his healthy twin sister home and retained custody of her – even though it emerged the father had a child-sex conviction. And it happened again in 2012 a visa was granted by consular staff to take one baby home, leaving its twin behind in India. Without proper legislation, this is the face of Commercial Surrogacy – and it’s unacceptable.
So why not just legislate the commercial part of the transaction in Australia? What, seriously, is the problem with paying someone to bear your child for you? Prue Goward, when she was the NSW Family and Community Services Minister in 2010 ruled against commercial surrogacy saying that “Women are not cows,” and “Their job is not to bear children for money because other people want children.” Well, that’s just patronising. And rude. I’m not sure it’s even correct.
Many women use their bodies for their income... and if you’re thinking I mean prostitution – I do. And I also mean dancers, actors, and models. The point is - some women have a talent for making babies. How hard would it be to create an ethical framework and a pay scale for them? Something that includes a sliding scale for the first, second and third trimester; holiday pay, medical expenses – maybe even a loading for morning sickness or medical complications; and then police checks and psychological assessment for all the participants.
Personally, my husband and I have paid tens of thousands of dollars in fertility treatments. Well over $100,000 – without result. I still have seven frozen embryos, and would gladly pay $50,000 to someone to carry them for me. (I’d have to start a GoFundMe campaign, but...) I have no idea if that's an attractive figure, all I know is that I’m not even being invited to talk about it. It’s time these laws were brought to the Federal Parliament for consistency and consideration - and not just by doctors, lawyers and economists – but the human beings who are directly affected.
Would you consider carrying another woman’s child to term? How much would you consider to be a fair fee? What are your objections to helping others create a family?
Sheridan Jobbins is the author of Wish You Were Here, available now online and at all good bookstores $29.99.