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The Complex Web of Surrogacy: An update

Wendy Johnson

The world will never forget the face of beautiful Baby Gammy. The case shone a massive spotlight on the complex web of surrogacy.

The topic has been back in the news with surrogacy clinics having opened in Nepal, Cambodia, India and Thailand. Recently, Australian babies have been denied exit from Thailand and Australians have been caught up in the unexpected freeze on commercial surrogacy imposed by Nepal’s Supreme Court.

In Nepal it became unclear, in a flash, what happens to babies conceived or born before the freeze—except that these babies appear to be stranded overseas.

Foreign Minister Julie Bishop is on record saying Australia will encourage the Government of Nepal to put in place arrangements as soon as possible, although there are limits to what the Commonwealth can do to influence the laws of another country.

So what draws educated Australians to choose surrogacy services from countries like Nepal that offer no protection over the rights of commissioning parents, surrogates or newborn children?

For Sam Everingham, the Director of Families Through Surrogacy, the answer is clear. “Australian social policy has failed these parents,” says Sam. “In a global market, surrogacy agencies promise a quicker route to parenthood, although it’s not that straightforward.”

That’s why Sam appeals to parents to seek the legal advice of a subject-matter expert before taking the first step towards surrogacy.

“Don’t go online and do your own research,” says Sam. “It’s not good enough. You absolutely need expert advice to understand in detail what your rights are, what the rights of the surrogate are, and what the rights of the baby are.”

Debra Parker, a Partner at Watts McCray here in Canberra, couldn’t agree more. “Laws differ in the states and territories, surrogacy can be an emotional roller coaster with many uncertainties and hurdles to overcome,” says Debra. “Seeking legal advice is the only wise approach.”

So what is the law in the ACT? Here are a few facts that should motivate parents to talk to a lawyer before becoming involved in surrogacy.

  1. Commercial surrogacy—paying someone to carry and deliver a baby for you—is illegal in the ACT no matter where the surrogate mother lives (in Canberra, another part of Australia or another country). “It’s an offence,” says Debra. “If caught, you could face up to one year’s imprisonment or a large fine, or both.”
  2. The only surrogacy arrangement permitted in the ACT is called ‘altruistic’ surrogacy. “The surrogate is not paid to carry the child, but the substitute parents are allowed to pay for certain out-of-pocket expenses such as medical and travel costs and expenses related to time off work,” says Debra.
  3. Australian law will not enforce any agreement between substitute parents and the surrogate, even if it’s in writing. “Many substitute parents incorrectly assume that when the baby is handed over they are the legal parents,” says Debra. “Legal parentage can only be transferred by an Order of the ACT Supreme Court, which is then recognised by the Family Court, but it’s far from automatic.”
  4. In the ACT at least one parent must be a genetic parent, but neither the surrogate mother nor her partner can be, so their ovum and sperm cannot be used.
  5. In the ACT the intended parents must be a couple not an individual.

Arranging for commercial surrogacy outside Australia is also complex, with risks. Both Sam and Debra agree that this is definitely the case. “Obtaining Australian citizenship for the baby whilst overseas and a passport to return with the baby can be difficult as well as emotionally draining,” says Debra.

Surrogacy has caught the attention of the Family Court of Australia and the Federal Circuit Court of Australia. The Chief Judge of the Federal Circuit Court of Australia has expressed his concern about the abuse of women and newborn children and how best to protect them. His Honour Chief Judge John Pascoe has called for Parliament to urgently address these issues.

In the meantime, couples desperate to have a family through surrogacy need to put their emotions aside and start by understanding the risks and how difficult, challenging and unpredictable the journey of international surrogacy can be.

Image of ‘pregnant women sitting…‘ via Shutterstock

Wendy Johnson

Wendy Johnson graduated with a Master’s Degree in Journalism from Carleton University, Ottawa, Canada, a few decades ago. She’s been living in Australia since 1995, having fallen in love with eucalypt trees and kangaroos. Wendy is passionate about Canberra and all the nation’s capital has to offer. She loves to write (about everything and anything) and owns her own pr and advertising business. More about the Author

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