Omari Gates
Commercial surrogacy is illegal in Australia due to concerns about the exploitation of surrogates, children, and commissioning parents. The Australian Parliament and the United Nations (UN) have published reports highlighting human rights risks and ethical issues associated with commercial surrogacy, including the potential reinforcement of socio-economic inequalities. While there are calls for legalisation, with some arguing that surrogates should be compensated for their work, others compare commercial surrogacy to human trafficking and emphasise the need to protect the human rights of all involved.
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What You'll Learn
Human rights and legal issues
Commercial surrogacy is illegal in Australia due to human rights and legal issues. The Australian Parliament and the United Nations (UN) have published reports highlighting the human rights risks and legal concerns associated with commercial surrogacy. The UN Committee on the Rights of the Child (CRC) has expressed concern that commercial surrogacy, without proper regulation, can lead to the sale of children. The UN Special Rapporteur on the sale and sexual exploitation of children has also reported on the link between surrogacy and the sale of children, stating that commercial surrogacy often constitutes the sale of children under international human rights law.
In Australia, commercial surrogacy is prohibited to prevent the exploitation of surrogates, children, and commissioning parents. The practice can reinforce socioeconomic inequalities, with women from poorer social groups in developing countries entering arrangements to bear children for those from more affluent groups. This dynamic raises ethical concerns and contributes to the perception of commercial surrogacy as a form of human trafficking.
The legal status of commercial surrogacy in Australia varies across states and territories, with some states explicitly prohibiting it. For example, Queensland, New South Wales, and the Australian Capital Territory (ACT) have laws regulating international surrogacy arrangements, while Victoria's laws do not apply to overseas arrangements. These inconsistencies in legislation have led to calls for an overhaul of Australia's "patchwork" laws.
The Australian Law Reform Commission (ALRC) is currently reviewing the nation's surrogacy laws, considering issues such as complexity, inconsistencies, and barriers to accessing surrogacy and citizenship for babies born abroad. The ALRC aims to identify legal and policy reforms that protect human rights and comply with Australia's international obligations.
While commercial surrogacy remains illegal in Australia, residents of some states, such as New South Wales, the ACT, and Queensland, are prohibited from paying a mother overseas to be a surrogate. This further complicates the process for intended parents, who may face legal issues when returning to Australia.
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Exploitation of surrogates, children and parents
Commercial surrogacy is illegal in Australia primarily because it is perceived to lead to the exploitation of surrogates, children, and commissioning parents. The Australian Parliament and the United Nations (UN) have published reports highlighting the human rights risks and ethical concerns surrounding commercial surrogacy. The UN Committee on the Rights of the Child (CRC) has expressed concern that inadequate regulation of commercial surrogacy can result in the sale of children.
The practice of commercial surrogacy has been associated with the exploitation of surrogates, particularly women from disadvantaged and rural communities. These women may experience poor conditions and are often from poorer social groups in developing countries, bearing children for individuals or couples from more affluent backgrounds. This dynamic reinforces socioeconomic inequalities and raises ethical concerns about the commodification of reproductive services.
Children born through commercial surrogacy may also face exploitation. In the absence of proper regulation, there is a risk of them being treated as commodities and sold, as noted by the UN Special Rapporteur on the sale and sexual exploitation of children. Additionally, the involvement of money in surrogacy arrangements can lead to blackmail, deception, and threats, as seen in the Seto and Poon case in Sydney, where the birth parents demanded additional payments and made threats regarding the twins' custody.
Furthermore, commercial surrogacy can also result in the exploitation of commissioning parents. The financial burden associated with commercial surrogacy can be significant, with costs ranging from $40,000 to $180,000, leading individuals to make substantial financial sacrifices. Additionally, the complexity of surrogacy arrangements, inconsistencies in legislation, and barriers to gaining Australian citizenship for children born abroad contribute to the challenges faced by commissioning parents.
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Sale of children
Commercial surrogacy is illegal in Australia due to concerns about the sale and exploitation of children. The UN Committee on the Rights of the Child (CRC) has expressed concern that commercial surrogacy, if not properly regulated, can lead to the sale of children. The UN Special Rapporteur on the sale and sexual exploitation of children has also provided reports on surrogacy and the sale of children.
The Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography defines the sale of children as "any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration". This definition includes commercial surrogacy, where someone pays a surrogate mother for her services, which is illegal in Australia.
There have been cases of trafficking and the sale of children through surrogacy, leading to horrific instances of abuse. For example, an American/Australian couple bought a newborn child from Russia for US$8,000, and the child was sexually abused and shared with paedophiles around the world. In another case, a young man in Pennsylvania commissioned a surrogate child as the sole parent, and the child died six weeks later due to severe physical abuse. These cases highlight the potential dangers of commercial surrogacy and the risk of exploitation and abuse of children.
The Australian government has taken steps to protect the rights of children born through surrogacy, including through international treaties and laws. The Australian Parliament and the United Nations (UN) have published reports on the human rights risks and legal issues associated with international commercial surrogacy. The House of Representatives Standing Committee on Social Policy and Legal Affairs conducted an inquiry into the regulation and legal aspects of international and domestic surrogacy arrangements, recommending that commercial surrogacy remain illegal in Australia due to the significant risk of exploitation of surrogates and children.
While commercial surrogacy is illegal in Australia, altruistic (non-commercial) surrogacy is allowed. In altruistic surrogacy, the surrogate mother does not charge any fees or receive payment beyond reimbursement for medical and other costs. However, there are still concerns about the potential for exploitation and the difficulty in tracing surrogate mothers, even in cases of altruistic surrogacy.
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Socio-economic inequalities
Commercial surrogacy is illegal in Australia due to concerns about the socio-economic inequalities it can create and reinforce. This is based on the observation that it is often women from poorer social groups in developing countries who become surrogates for those from more affluent backgrounds. The practice has been described as exploiting women from disadvantaged, rural communities, with some referring to "surrogacy farms" where groups of women are held throughout their pregnancies.
The Australian Parliament and the United Nations (UN) have published reports highlighting the human rights risks and ethical issues arising from commercial surrogacy. The UN Committee on the Rights of the Child (CRC) has expressed concern that commercial surrogacy, without proper regulation, can lead to the sale of children. The UN Special Rapporteur on the sale and sexual exploitation of children has also reported on the link between surrogacy and the sale of children, stating that commercial surrogacy often constitutes the sale of children under international human rights law.
The high costs associated with commercial surrogacy contribute to the inequalities. Couples may spend hundreds of thousands of dollars on the process, including the surrogate's fee, IVF costs, medical bills, and travel expenses. This financial burden can disproportionately affect those with lower socioeconomic status, creating a barrier for those who cannot afford it.
While some argue for the legalisation of commercial surrogacy in Australia, citing the desire for more accessible surrogacy options, others emphasise the importance of protecting the human rights of all involved and preventing the exploitation of surrogates, children, and commissioning parents. The Australian Law Reform Commission is currently reviewing the nation's surrogacy laws, considering issues such as complexity, inconsistencies in legislation, and barriers to accessing surrogacy.
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Trafficking in human body parts
Commercial surrogacy is illegal in Australia due to concerns about the trafficking of human body parts and reproductive material. Dr Evie Kendal, a bioethicist and public health researcher, notes that commercial surrogacy is sometimes likened to human trafficking. Babies born via commercial surrogacy are often born in foreign countries and then brought back to Australia. In many cases, the women who become surrogates are from disadvantaged, rural communities and experience poor conditions during their pregnancies. Kendal refers to hospitals where groups of women are taken and held throughout their pregnancies as "surrogacy farms".
The UN Committee on the Rights of the Child (CRC) has consistently expressed concern that commercial surrogacy, if not properly regulated, can lead to the sale of children. The UN Special Rapporteur on the sale and sexual exploitation of children has presented reports on surrogacy and the sale of children to the UN Human Rights Council. These reports note that commercial surrogacy, as currently practised, often constitutes the sale of children under international human rights law.
The Australian Parliament and the United Nations (UN) have published reports highlighting the human rights risks and legal issues associated with international commercial surrogacy. The House of Representatives Standing Committee on Social Policy and Legal Affairs conducted an inquiry into the regulation and legal aspects of surrogacy arrangements. The Committee's final report included the recommendation that "the practice of commercial surrogacy remain illegal in Australia" due to the significant risk of exploitation of surrogates, children, and commissioning parents.
While commercial surrogacy remains illegal in Australia, there is a growing appetite for it, and an increasing number of Australians are finding surrogate mothers overseas. This has led to calls for an overhaul of Australia's "patchwork" surrogacy laws. However, some ethicists argue that paying for babies should remain illegal, and the Australian Law Reform Commission (ALRC) is reviewing the nation's surrogacy laws to consider how to reduce barriers to domestic altruistic surrogacy arrangements.
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Frequently asked questions
Commercial surrogacy is illegal in Australia because it is believed to lead to the exploitation of surrogates, children, and commissioning parents. It is also believed to reinforce socioeconomic inequalities, with women from poorer social groups entering international commercial surrogacy arrangements to bear children for those from more affluent countries and groups.
Altruistic surrogacy is legal in Australia. In altruistic surrogacy, the surrogate's expenses are covered, but no other profit or payment is made. Commercial surrogacy, on the other hand, involves paying the surrogate more than their reasonable expenses, which is illegal in all Australian states and territories.
There are varying laws and regulations regarding surrogacy across different states and territories in Australia. While residents of some states are legally allowed to contract a woman overseas for commercial surrogacy, others, like Queensland, prohibit it. Legal issues may arise when returning to Australia, and proper legal advice should be sought before proceeding.
Yes, there are ethical concerns surrounding commercial surrogacy, with some researchers and ethicists arguing that paying for babies should remain illegal. The UN Committee on the Rights of the Child (CRC) has expressed concern that commercial surrogacy can lead to the sale of children if not properly regulated.
