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Surrogacy and why many parents break the law

Belly of pregnant woman with pink bowZac is a NSW policemen. He and
his wife, Louise, a 34-year-old lawyer are ready to break NSW law. I met them last week. Louise had suffered three miscarriages before turning to IVF. Since then her womb has been carefully prepared five more times. Only two of the nine embryos implanted turned into a pregnancy and both miscarried.

Her doctor finally made a diagnosis – she had ‘killer cells’ in her womb. Her physician is recommending surrogacy – another woman to carry her embryo, her child for her. It is a process which is becoming an increasingly common means of family formation for those who cannot carry a child themselves. This includes not only infertile couples, but singles and gay couples who yearn to be parents.

However couples like Louise and Zac are loathe to attempt to find an altruistic surrogate in Australia. While relatives have offered, that’s just too close to home for their comfort. A stranger? Again, Louise would feel uncomfortable about accepting such generosity and a baby, without being able to compensate her surrogate, even though the surrogate would have no genetic relationship to her child. For many couples like Louise and Zac, they either cannot locate a surrogate in Australia, are uncomfortable not being able to compensate her, or would rather distance their surrogate from their own family.

Unfortunately this means the efforts Australian states have gone to in recent years to guide the practice of surrogacy at home is failing miserably. Healthcare practitioners, ethicists, academics, lawyers and child advocates have helped legislators define who can and cannot act as a surrogate, who is eligible to be an intended parent through surrogacy, what out-of-pocket expenses may be paid to the surrogate, how the law will deal with parental rights and what counselling is required prior to entering an arrangement. The problem is, no one bothered to consult infertile parents or Australian surrogates in all this. The result is a system which is largely unworkable and inaccessible to all but the most determined.

It’s a model similar to the UK and New Zealand, where surrogacy is allowed if the surrogate is paid no more than out-of-pocket expenses. While this is fine for some, the problem for many is hooking up with a woman who has the psychological make-up to be a surrogate.

Enter overseas surrogacy. The global economy and the preparedness of thousands of Australians like Zac and Louise to travel means that ‘cross-border’ surrogacy arrangements are increasingly common (for Australians this mostly means India, the US or Thailand). While Queensland, New South Wales and the ACT each have criminal laws in place outlawing overseas surrogacy, each of these governments knows it would be political suicide to charge, detain and worse, lock up a new parent. So their laws have never been policed. In fact a number of NSW parents through surrogacy have shown off their newborns in major newspaper stories – complete with photographs and names. No authorities have come knocking.

While overseas arrangements are no easy journey, such is the determination of intended parents, they will put up with the expense, worry and risk of legal and medical complications. And surrogacy journeys can have no shortage of these.

For example India – at present the main destination for hundreds of Australian families through surrogacy each year – has just announced that foreigners need to be married for a minimum of two years (and resident in an Australian state which allows overseas surrogacy) to apply for their new ‘surrogacy’ visas. This rules out 70 per cent of intended parents. It means scores of Australians who have babies on the way in India are biting their fingernails hoping for a ‘clean exit’. Scores more are shifting to agencies and clinics in Thailand – a more expensive option but not as costly as the US, where medical insurance, legal fees and high hospital costs can make surrogacy unattainable for all but wealthy Australians.

The problem is, the exodus of parents from India to Thailand is not just Australians, but Israelis, British, Americans, Dutch, Scandinavians, Brazilians together with many other nationalities. It has lead to Indian middle-men agents descending on Bangkok in an attempt to do deals with hospitals, IVF specialists and other surrogacy services. It is unlikely Bangkok’s IVF industry has the infrastructure in place to cope with the demand. Amongst greedy clinics trying to take shortcuts, there are bound to be problems – unethical agents, surrogates not properly screened and inadequate medical care.

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