Arrests and uncertainty overseas show why Australia must legalise compensated surrogacy

Cambodia is the latest country in our region to ban commercial surrogacy. As happened when India, Thailand and Nepal introduced such bans, dozens of Australians are now extremely anxious because they have no idea what is going to happen to their babies who have recently been born or are on their way.

A lack of regulation of surrogacy in these countries makes it easy for exploitation to occur. So, it is simpler for them to just ban the practice, rather than devise comprehensive laws to adequately protect all parties involved in a surrogacy arrangement.

But the reasons for banning compensated surrogacy in developing countries don’t apply in Australia. We already have much of the legal infrastructure needed to ensure that compensated surrogacy can be undertaken in a way that is not exploitative and protects the interests of everyone involved – especially children. And we have world-class medical skills and health services to ensure surrogacy is performed to the highest standards.

Why are couples looking to overseas?

Australian officials are hurriedly meeting with Cambodian authorities to try to negotiate transitional arrangements so parents can bring their children home. Meanwhile, Australian woman Tammy Davis-Charles is facing charges relating to her running a surrogacy clinic in that country.

With so many stories of things going horribly wrong with overseas surrogacy arrangements, why are Australians continuing to go to these countries to start their families? Surely they should realise how risky it is to pursue surrogacy in countries that have no laws protecting the children born via surrogacy, the surrogate, or the intended parents?

For some, the urge to have a child is clearly so strong that they will go to almost any length to start their family. This includes throwing themselves into the often unsavoury global commercial surrogacy market.

Couples undertaking compensated surrogacy generally fall into one of two groups:

• infertile heterosexual couples who have been doing IVF for years and have finally given up on ever conceiving a child in this way; or

• gay couples, who can’t find a woman willing to donate eggs and another willing to carry a child for them to receive only reimbursement of their out-of-pocket expenses for the risk and effort they undertake.

Given all Australian states and territories ban compensated surrogacy, going overseas is the only option for these couples.

The two safest countries in which to undertake surrogacy – those with the best laws and healthcare systems – are Ukraine and parts of the US. However, Ukraine discriminates against gay couples, offering surrogacy services to married heterosexual couples only. And the cost of surrogacy in the US is beyond the reach of most Australian couples.

This leaves only developing countries closer to home. With Cambodia closing its doors to surrogacy, Laos will possibly become the next destination for these reproductive services. But if the best predictor of future behaviour is past behaviour, it will only be a matter of time before Laos announces similar bans.

Issues overseas should prompt Australian action

Children born overseas via surrogacy can experience short- and long-term problems. In the short term, they may have difficulties getting a visa or Australian citizenship. In the long term, they may struggle with identity issues.

One lesson we have learned from adoption is that many children have a strong urge to know their genetic origins. The lack of regulation and record-keeping in developing countries makes it virtually impossible for a child born via surrogacy to access information about their egg donor.

Contrast this with Australia. For many years, it has maintained central registries of all sperm and egg donors, which children of such donors can access when they turn 18.

The lack of regulation in developing countries also makes it easy for surrogates to be exploited. Again, this can be avoided in Australia, with the enactment of laws to protect surrogates. These could include, for example:

• compulsory psychological assessment of both surrogates and intended parents;

• evidence of free and informed consent by surrogates given only after mandatory counselling and legal advice;

• approval of all compensated surrogacy agreements by a regulatory body such as the Patient Review Panel in Victoria, which already approves altruistic surrogacy arrangements in that state;

• setting minimum and maximum rates of compensation for surrogates that reflect the risk and effort involved in carrying a child for another; and

• surrogates retaining the right to make all decisions relating to their health and that of the foetus they will carry.

But a worrying pattern is emerging in Australia: we prefer to export our policy problems rather than deal with them at home. This extends to asylum seekers whom we detain on Nauru and Manus Island, and dual citizens convicted of terrorism offences overseas whom we strip of their citizenship and block from returning to Australia.

To this list, we can add couples with fertility problems.

Australia is a wealthy country with superior health and legal systems, and we should provide all modern reproductive services in a safe and regulated environment that protects the human rights of all participants.