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.