Laws Making Paid-For Surrogacy Criminal Are Not Stopping Australian Couples Desperate For Children

Thai surrogate mother Pattaramon Chanbua poses with baby Gammy at the Samitivej Hospital in Bangkok. David and Wendy Farnell have made international headlines for leaving the infant Gammy in Thailand with his surrogate mother. Gammy’s twin sister lives with the Farnells at their home in Bunbury, Western Australia. In a recent television interview, the couple have denied abandoning their son. Getty Images

Current laws criminalising compensated surrogacy are doing little to stop Australian would-be parents entering into arrangements with overseas surrogates, according to research published by the Medical Journal of Australia.

The researchers say an urgent review of surrogacy-related laws is needed.

Sam Everingham, of Stethoscope Research, and his academic coauthors conducted an anonymous online survey of 259 intended parents in partnership with Surrogacy Australia, finding only 9% were deterred by laws that make overseas compensated surrogacy arrangements a criminal offence.

Of the 114 who actually lived in Australian states with criminalisation laws, 63 (55%) would enter an overseas surrogacy contract, based on a low probability of prosecution.

Overseas surrogacy has been highlighted recently by the baby Gammy case who, with his twin sister, was born to a Thai surrogate mother. Gammy, who has Down Syndrome and some health issues, was left in Thailand by his Australian parents while his twin sister now lives in Western Australia.

“The high proportion of intended parents using overseas instead of domestic surrogacy arrangements shows that Australian public policy in this area is failing,” Mr Everingham and his coauthors wrote in the journal.

“Legally accessible uncompensated surrogacy processes clearly do not meet the needs of many.

“Further, state-based legislation criminalising overseas compensated surrogacy is not stopping the practice.

“It appears that the drive to have a child for people who need surrogacy is greater than the barriers erected by Australian legislators.”

Of the 259 respondents, 44% did not even consider uncompensated surrogacy — where the surrogate mother is only reimbursed for out-of-pocket medical costs associated with pregnancy and birth — in Australia.

The main reasons were that the surrogate might decide to keep the child, a belief that the process was too long and complicated, and having no one of the right age or life stage to ask.

They also had concern regarding the unfairness of carrying a child for no reward.

The average amount spent on uncompensated surrogacy still in progress was more than $27,000, with significant amounts still to be incurred.

Those who had completed compensated arrangements spent $69,000 in India and $172,000 in the United States.

The number of successful uncompensated arrangements conducted in Australia was just 21 in 2011, in contrast to more than 270 babies born overseas to Australians in the same year.

The high costs involved meant that the processes of surrogacy, both overseas and in Australia, “discriminate against less financially secure Australians”, the researchers wrote.

“By accessing unregulated surrogacy either at home or overseas, Australians forgo potential benefits, such as expert preparatory counselling, transfer of intended parents’ names to the birth certificate, and legal recognition of parentage,” the researchers wrote.

However, unregulated surrogacy overseas avoids the need for intended parents to find a surrogate themselves as well as the lengthy delays associated with ethics committee approval.

The researchers say a review of public policy and legislation is badly needed.

“Allowing surrogates to receive some compensation for the work of carrying a pregnancy might make it easier to recruit surrogates in Australia and avoid the need for people to undertake unregulated surrogacy overseas,” they write.

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