MetcatorNet 2 May 2016
Rachael Wong is a barrister from New Zealand who has recently completed a Master of Bioethics and Health Law from the University of Otago. She is currently working with the Law Reform Commission in Samoa to bring about legislative reform to improve the lives of Samoan women and girls and has previously collaborated with organisations that seek to eliminate exploitation of women and children.
From Baby Gammy’s Australian parents being cleared of abandoning him in Thailand, to an altruistic surrogacy arrangement in Queensland turned sour, to a Victorian man pleading guilty to sexually abusing his surrogate twins, surrogacy continues to be a hot-button issue in Australia. With the report of Australia’s Parliamentary Inquiry into Surrogacy due in a couple of months, this is unlikely to change any time soon.
In response to the Queensland story, Robert Reith, president of Surrogacy Australia, maintained that this highlights the need for a regulated surrogacy framework across Australia. This echoes the views of the Chief Justice of the Family Court, Diana Bryant, who last year called for the immediate legalisation of commercial surrogacy in Australia.
Reith and Bryant believe that Australian surrogacy laws are driving decent couples to seek these services overseas and in some cases to behave unethically as a result. Citing disturbing cases of child abandonment overseas, Justice Bryant said the Federal Government should act to allow commercial surrogacy in Australia because “If we allow it in Australia, we can then regulate it and ensure that it’s done on ethical terms.”
Apart from anything else, this could amount to an excuse for bad behavior: “We neglected our surrogate mother and she used our son as a bargaining chip to obtain money because our surrogacy arrangement wasn’t properly regulated.”
Or, “I was forced to behave this way because I had to go to overseas to access commercial surrogacy. If I had been able to access regulated commercial surrogacy in Australia, of course I would never have sexually abused my children or abandoned my child because he was the ‘wrong’ sex.”
Laws and regulatory frameworks are a necessary part of any society. Unfortunately laws cannot in isolation control human behavior. People are also motivated by their conscience and values. If their values are such that they are prepared to abuse or abandon their own child then it is highly likely that this is going to occur regardless of the law. There are thousands of children living in the Out-Of-Home Care system in Australia today who are a testament to that.
No, the problem with surrogacy in Australia, altruistic or commercialised, is not that it is unregulated or unavailable. The issue with surrogacy is that it is, in and of itself, unethical. The exploitation of women and children involved is breathtaking. No amount of regulation is going to change that.
Firstly, it involves the objectification and exploitation of women. It deliberately fractures motherhood into biological, gestational and social roles. Just as prostitutes are reduced to their physical attributes and capacity to have sex, surrogate mothers are reduced to their physical attributes and capacity to bear children. As Justice Thackray aptly put it in the recent Baby Gammy ruling where it was found that the Thai surrogate mother had refused to give him up:
“surrogate mothers are not baby-growing machines, or ‘gestational carriers’. They are flesh and blood women who can develop bonds with their unborn children…Quite apart from the separation of the twins, this case serves to highlight the dilemmas that arise when the reproductive capacities of women are turned into saleable commodities, with all the usual fallout when contracts go wrong.”
Disadvantaged women are also particularly vulnerable to exploitation. Poor women desperate for money don’t just live in developing countries. They live in countries like Australia as well, and its laws should be designed to support and protect these women, not create systems where they can be further exploited.
Secondly, surrogacy involves the deliberate removal of a child from its birth mother – who may also be its biological mother — for no reason other than that the commissioning parents want the child and are willing to pay for it. This process deliberately preferences the needs of the commissioning parents above those of the most vulnerable parties involved in the “transaction” – the child and the birth mother.
The suffering of couples unable to conceive their own children should not be trivialised, but surrogacy is not the answer. If anything, issues surrounding surrogacy in Australia provide further incentives to address the country’s desperate need for adoption law reform. Adoption could then be a truly viable option for such couples, not to mention the children who would benefit as a result.
Finally, surrogacy treats children as commodities to be traded. Children can be “commissioned” in the same way that a painting or a sculpture can be commissioned. When we start treating children as commodities that we can purchase to satisfy our own needs, is it little wonder that they are discarded when they disappoint, or that there are people who go the next step and are willing to commission them for indescribable purposes? Surrogacy merely legitimises a modern form of human trafficking that we must make every effort to prevent.
Australian law should have at its heart respect for the dignity of every human being. It should not be an instrument for legally exploiting women and children. The European Parliament and the Council of Europe recently rejected the legalisation of surrogacy on these grounds. Australia should follow suit.