: Surrogacy, Law and Human Rights

Surrogacy, Law and Human Rights

Stephen Page

Gerber-Surrogacy-Law-and-Human-rights-cover-smPaula Gerber and Katie O’Byrne (eds); Ashgate, 2015; 238 pages; $125 (hardback)

When I went to uni to study law back in the ’80s, I never imagined that I would ever run a case arguing when life began. It was one of those joke questions that we law students would say to each other. I did however have such a case in 2012, when I persuaded a judge that the conception of a child occurred not at the time of fertilisation of the embryo, but at the commencement of pregnancy.

A disaster was avoided. The question of when the child was conceived in law was essential. If conception had been when the fertilisation of the embryo had occurred, and not at pregnancy, an order transferring parentage to the intended parents could not have been made. Luck was on our side and the judge agreed with my analysis. The case illustrates the bigger point — that the law is playing catch up with big changes in society.

It is an old Chinese curse, ‘May you live in interesting times.’ We have such times today when it comes to having babies. No longer is the statement, ‘Too bad. You can’t have kids’, accepted as a matter of course.

Day in, day out I am met by the pleas of those desperate to have children: ‘We just want to be like everyone else.’ ‘I could not imagine living life without becoming a mother.’ ‘Why is it so hard to have children?’

For those who can have children by natural means, surrogacy and the related egg and sperm donation seem a world away. What could be more natural than having kids? In the last 30 years or so, the rise of assisted reproductive treatment, including IVF, has meant that the boundaries continue to be challenged. What once was thought impossible, such as a gay couple having a child of their own, or an ovarian cancer survivor becoming a mum now becomes possible, even everyday. IVF clinics continue to innovate, surrogates and egg donors become available, and suddenly the once impossible dream of having a family becomes possible.

The law, and society’s attitude to the option of last resort, surrogacy, has struggled to keep up. It is an everyday event that Australians, whether single, married or gay use surrogacy, including overseas surrogacy. At the time of writing, Australians are not only undertaking surrogacy at home, but travelling abroad, going to places as far afield as Nepal, Mexico, the Republic of Georgia, the US and Canada. Australians also travel far afield for egg donations, as far away as Argentina, Spain and Greece.

These individual journeys are full of ethical quandaries. Anyone who says they don’t, such as some developing country promoters of surrogacy, is simply not telling the truth. It is possible for everyone in the journey, aside from the agent and the IVF doctor, to be exploited: the intended parents, the surrogate, her partner, the donor, and above all the child.

What role should the law and society play in trying to deal with the human rights issues, after Pandora’s Box has opened? How should the law seek to try and protect the interests of the child and the surrogate in particular? Should the law seek to stamp out surrogacy, or should there be a laissez faire approach? Should the market rule?

These issues come to the fore in the excellent book Surrogacy, Law and Human Rights, evidencing in the words of noted academic Professor Jenni Millbank, ‘the burgeoning academic dissensus on the role of law in responding to the challenges posed by domestic and transnational surrogacy.’

I was very pleased to see my 2012 case, which has a particularly obscure citation, referred to in a great summary by Tammy Johnson about surrogacy law in Australia before she set out her proposals for reform of Australian surrogacy laws.

One challenge that has arisen in Australia in particular is that in several jurisdictions it is illegal to go overseas for surrogacy. Australian laws extend overseas. As Anita Stuhmcke notes, there was little if any debate about the utility of these laws, which she passionately argues ought to be repealed.

The editors, Paula Gerber and Katie O’Byrne, focus in their chapter on the rights of the child, concluding that the International Convention on the Rights of the Child protects children well, if countries such as Australia adhere to the Convention. I note that in several recent European cases the child’s right to an identity under Article 8 of the Convention has been a telling point for courts being persuaded to make an order in favour of intended parents.

Judge Alexandra Harland and Dr Cressida Limon argue powerfully for reform in Australia, concluding: ‘The reality of commercial surrogacy cannot be ignored. Children will continue to be born as a result of surrogacy arrangements to Australian couples regardless of whether or not Australian legislation prohibits it. As a matter of the basic rights to family and identity, these children and their parents should have the reality of their family structures recognised. It does not benefit anyone for children to have legally invisible parents and for parents to have limping legal parentage.’

Anthony Wood is a gay lawyer from Melbourne who with his partner underwent surrogacy in the US. He describes an affirming experience, in which the surrogate was the queen. Wood and his partner ended up with normal children, and ‘I’ve met couples excluded by state laws here which criminalise their pursuit of parenthood. People who would make amazing parents. And women who would willingly be wonderful surrogates, but are forbidden from doing so. It’s hard to sit back and listen to uninformed critics making moral judgments, frequently based on “religious” grounds, or the “best interests of the child”. Trust me, the kids are OK.’

One of the strengths of our messy system of surrogacy laws in Australia is to require independent legal advice and counselling before the surrogacy arrangement is entered into, and above all to have judicial oversight afterwards. This requirement of empowerment of all, especially the vital role of the surrogate, is recognised in chapters by Kate Galloway and Sonia Allan, and contrasts with approaches in India and the United States covered in other chapters.

This stimulating, well-written book is not just for surrogacy lawyers like me. It is chock full of differing perspectives covering ethical issues concerning surrogacy. A great read.

STEPHEN PAGE is a partner of Harrington Family Lawyers, Brisbane, and chair of the Surrogacy Australia legal committee.

(2015) 40(4) AltLJ 291
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