SLEEPWALKING THROUGH THE MINEFIELD: LEGAL AND ETHICAL ISSUES IN SURROGACY

• Citation: (2018) 30 SAcLJ 455
• Date: 01 December 2018
• Published date: 01 December 2018
• Author: John PASCOE BA, LLB (Hons) (ANU); Chief Justice of Family Court of Australia.

This article will briefly explain the different types of surrogacy and regulatory approaches taken by states before examining some of the ethical and legal concerns arising out of surrogacy. It explores the significant human rights abuses that have affected surrogate mothers and the resulting children in the context of international commercial surrogacy. Regulatory responses to these abuses and the willingness of commissioning parents to evade restriction have led to children been born stateless and without legal parents. Thus, in regulating surrogacy, states face the dilemma that what is in the best interests of children at a policy level may clash with the best interests of the individual child already born through surrogacy.

I. Introduction

1 While the concept of family has been a fluid throughout history and across cultures, the development of reproductive technology over the past decades has seen significant changes to our understanding of family, parenthood and the creation of life itself. Surrogacy, a form of assisted reproductive technology, has enabled those with reproductive difficulties, or who are unable to have a child naturally, to have a family. In many and most situations, this is a happy occasion. Advocates for surrogacy often focus on the aching desire to be a parent and the struggles and joy of the commissioning parent to achieve this desire. However, surrogacy has also created a baby-making “wild west”, where the rights and interests of children and surrogate mothers are being trampled by those desperate to start a family, and those hoping to profit from that desire.

2 Surrogacy is a controversial topic that is dynamic and complex. The precise locations, ethical concerns and legal problems are constantly

shifting and changing. The complexity of the different types of surrogacy and the desires and rights of the parties involved makes it difficult to comprehensively and consistently legislate for all surrogacy arrangements. The difficulties are magnified by its morally and ethically fraught nature.

3 This article will briefly explain the different types of surrogacy and the different regulatory approaches taken by states before exploring some of the ethical and legal concerns arising out of surrogacy, particularly international commercial surrogacy. It concludes by arguing that, in all the legal and ethical complexity, the primary focus must be the best interests of the child.

II. What is surrogacy?

4 In Australian family law, surrogacy has been defined in Lowe & Barry as:1

[An] arrangement whereby a woman (‘the surrogate mother’) agrees to conceive and bear a child, which she intends to transfer to another or others (the ‘commissioning couple’ or ‘commissioning husband’ and ‘commissioning wife’) upon the child's birth …

5 It would seem that Benjamin J in this case tactfully omitted the words “genetically related” and could have omitted the word “conceive” as, oddly enough, neither are strictly necessary for a baby to be born via surrogacy. Such a baby may be created using the genetic material of the commissioning parents, or with the use of a donor egg, donor sperm, or both. There may be no genetic link to the commissioning parents whatsoever.

6 Medically speaking, there are several different types of surrogacy:

(a) Gestational (or total) surrogacy. A surrogate mother is inseminated with an embryo created by in vitro fertilisation⁴⁵⁶ (“IVF”), using the egg and sperm of the commissioning woman and man. The resulting child is genetically related to both the commissioning parents, and genetically unrelated to the surrogate mother.

(b) Gestational surrogacy and egg/sperm donation. A surrogate mother is inseminated with an embryo created by IVF, using the commissioning male's sperm and a donor egg, or the commissioning female's egg and donor sperm. The resulting

child is genetically related to one of the commissioning parents and genetically unrelated to the surrogate mother.

(c) Gestational surrogacy and donor embryo. A surrogate mother is inseminated with a donor embryo created by IVF. Such embryos may be available when other people undergoing IVF treatment have embryos left over, which they opt to donate or sell to other people or clinics. The resulting child is genetically unrelated to the commissioning parents and genetically unrelated to the surrogate mother.

(d) Traditional surrogacy. A surrogate mother is naturally or artificially inseminated with the Commissioning father's sperm via intrauterine insemination (“IUI”), IVF or home insemination. The resulting child is genetically related to the commissioning father and genetically related to the surrogate mother.

(e) Traditional surrogacy and donor sperm. A surrogate mother is artificially inseminated with donor sperm via IUI, IVF or home insemination. The resulting child is genetically unrelated to the commissioning parents and genetically related to the surrogate mother.

7 A surrogacy arrangement can be “commercial”; where the surrogate mother is paid a fee, above and beyond reimbursement for her pregnancy-related expenses, to carry and birth the child. Conversely, an “altruistic” surrogacy arrangement is one where the surrogate mother is reimbursed for her pregnancy-related expenses only. Altruistic surrogacy is rare and primarily an arrangement between close intimate relationships, such as sisters or close friends. Commercial surrogacy makes up the majority of surrogacy arrangements but is prohibited in many countries.2

8 Regulation of surrogacy varies greatly between jurisdictions, but can be roughly grouped in to four approaches:3

(a) All forms of surrogacy are prohibited.

(b) Commercial surrogacy is prohibited but altruistic surrogacy is permitted and regulated.

(c) Commercial surrogacy is permitted and regulated.

(d) Surrogacy is unregulated.

9 Domestic altruistic surrogacy4 is often seen as more acceptable than other forms of surrogacy, due to (a) the expectation of an ongoing relationship between child, birth mother, and the people who will parent the child, (b) a lack of financial coercion of the surrogate mother, and (c) avoidance of issues related to the commodification and exploitation of women and children.5 Nevertheless, pregnancy and birth are very risky practices. Carrying and bearing a child is also a highly emotional and connective process; bonding with the child that grows within a woman's body is common, and handing the child to other people (even if related or friends) can be emotionally fraught. To address this to some degree, the laws in jurisdictions that permit altruistic surrogacy may also restrict such practices to gestational surrogacy, with at least one of the commissioning parents having to be related to the child. The perception is that relinquishment of a child that is not genetically related to the birth mother, and is genetically related to at least one of the commissioning persons, will be more acceptable.6 Altruistic surrogacy is, however, clearly something that women do not enter into lightly and remains relatively uncommon.

10 Relatively few countries now permit commercial surrogacy, including Armenia, Georgia, Israel,7 Kazakhstan, Russia, Uganda, Ukraine, Liechtenstein and some states in the USA.8 Fewer still allow commercial surrogacy services to be provided to foreigners.9 Some

jurisdictions limit access to commercial surrogacy to heterosexual couples or those with fertility issues.10

11 The creep of financial incentives to engage women as surrogate mothers may also be seen in some nations in which “altruistic” surrogacy is permitted. For example, expanding interpretations of altruistic surrogacy, as seen recently in the UK, have seen a move beyond the law that requires reimbursement of “expenses reasonably incurred” in the pregnancy, to payments that “were not so disproportionate to ‘expenses reasonably incurred’ that the granting of an order would be an unacceptable affront to public policy”.11 In Greece, due to the wide interpretation given to “altruistic” arrangements, around €20,000 is being paid, in an environment in which the unemployment rate is currently around 50%, and a rising number of young women are offering themselves to act as surrogates in order to generate income.12 These, of course, are not “altruistic” arrangements at all, but rather by their very nature, commercial.

12 International commercial surrogacy, where commissioning parents travel to another country to engage in surrogacy, is a phenomenon that has developed and grown exponentially over the last few decades.13 Domestic restrictions or the inability to find women willing to engage in surrogacy without significant financial incentive has led commissioning parents to seek commercial surrogacy services abroad. An industry has sprung up around this desire, comprised of for-profit intermediaries such as agents, clinics and lawyers14 who strongly market commercial surrogacy as an acceptable means of achieving “parenthood” to wealthy couples.15 These intermediaries advertise to potential commissioning persons in their home state, as well as recruiting women to be surrogates. The surrogate mothers

usually enter the arrangements for financial reasons, often being significantly impoverished, in debt and from lower social classes.16 Sometimes, these women come from neighbouring countries, such as the well-documented cases of Indian women who travelled into Nepal to be surrogates for Israeli gay couples and were trapped during the 2015 earthquake.17

13 This occurs not only in countries in which commercial surrogacy is permitted and regulated. In fact, some places that lack regulations have been seen as opportune destinations for commercialised practices to set up clinics and market them internationally to people as “affordable” destinations to enter into commercial surrogacy arrangements. Indeed, over the past decade, such practices have resulted in international commercial surrogacy...