By Ronli Sifris
This piece is featured in the 2015 Castan Centre Human Rights Report. We will be featuring the articles on the blog throughout the month of May.
In August 2014, the story of Baby Gammy hit the headlines nationwide. Baby Gammy was born with Down Syndrome as part of a surrogacy arrangement between his biological parents (the Farnells) and a Thai surrogate (Pattharamon Chanbua). Ms Chanbua was paid almost A$12,000 to bear a child for the Farnells. When testing during the pregnancy revealed that Ms Chanbua was carrying twins, one of which would be born with Down Syndrome, the Farnells requested that she abort the affected twin but she refused. After the twins’ birth, the Farnells took the healthy child back to Australia and left the other child in Thailand. Ms Chanbua named the remaining twin Gammy and now cares for him as his mother.
In Australia, surrogacy is regulated differently by each State, although commercial (also known as compensated) surrogacy is banned nationwide. In Victoria, the law allows women to be surrogates, as long as they are not compensated for it. Some other States, for example NSW, go further by expressly prohibiting people from travelling overseas to enter into commercial surrogacy arrangements in countries where it is legal, such as the United States and India. Yet is was not until the Baby Gammy saga that the public at large began to debate seriously whether it should remain prohibited in Australia.
The issue of commercial surrogacy is vexed and complex; giving rise to passionate arguments relating to the rights of the child conceived through surrogacy, the rights of the intended parent(s) and the rights of the surrogate. When an arrangement is between a surrogate in the developing world and intended parents in the developed world, many people argue that such arrangements are a breach of human rights because they constitute ‘exploitation’. Rather than identify specific human rights infringed by the practice, they argue that poor women in developing countries bear children because they have few other ways of raising themselves out of poverty. Others do point to specific human rights; for example, some people argue that paying a woman to bear a child may be viewed as a breach of her right to be free from degrading treatment. Others argue that commercial surrogacy arrangements constitute a form of discrimination against women as they may represent a form of control over women’s bodies and reduce women to their reproductive capacity.
In contrast, it may be argued that an outright prohibition on commercial surrogacy is itself an infringement of a woman’s right to enter into such an arrangement. International human rights law enshrines the right to autonomy, also referred to as the right to privacy, which includes a person’s right to make choices regarding her own life and body. By claiming that surrogacy exploits the surrogate, critics are taking a paternalistic approach to the issue, and assuming that women who become surrogates cannot make decisions for themselves. In the case of Ms Chanbua, for example, her refusal to terminate the pregnancy when requested to do so would appear to refute the notion that she was not making her own decisions. That said, there are situations which reek of exploitation and the line is often blurred; in some circumstances a woman may in fact feel that she has no other means of raising herself out of abject poverty than by becoming a surrogate. Or a woman may feel pressured by her husband or other family members to enter into such an arrangement for the good of the family.
So what is the solution? I believe that a regulated form of commercial surrogacy should be permitted in Australia. The current legal situation, which allows fertility clinics to charge thousands of dollars for the provision of assisted reproductive services but which prohibits a woman who acts as a surrogate from accepting compensation, is incoherent and inconsistent. Further, allowing some form of compensated surrogacy in Australia would go a long way towards stopping the exploitation of surrogates abroad. It is unrealistic to think that Australians would stop entering into overseas surrogacy arrangements if commercial surrogacy is legalised in Australia. It may, however, be anticipated that the majority of Australians would prefer to enter into such an arrangement at home if given the choice. It would seem therefore that allowing a regulated form of commercial surrogacy in Australia would enable a legal framework to be put in place which respects the rights of the intended parent(s), the rights of the surrogate and the rights of the child resulting from an arrangement, while also reducing the amount of exploitation which may occur overseas.
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