Australian Law-Surrogacy - Essay Example

Australian Law-Surrogacy Many couples love to have a baby in the course of their marriage. However, there may be some factors that might hinder them from achieving this in the normal way for example in the case of female infertility, homosexual partners and other medical issues that may render pregnancy or delivery risky, undesirable or impossible. All these factors necessitate the need for surrogacy; an arrangement in which a woman carries and delivers a baby for another couple or person. The mother may be the genetic mother of the child and in this is known as traditional surrogacy. The mother could be genetically unrelated to the child and this is called gestational surrogacy. In this case, a fertilized egg is transferred to the womb of the woman and she carries it until delivery. Surrogate mother could offer this service for free, also known as altruistic surrogacy, or they could do it as commercial surrogacy where they receive a compensation for their services. In surrogacy, the parents who intend to raise the child are the child’s social parents or the commissioning parents (Reproductive Technology Council 1). Main issue/dilemmas involved One dilemma in surrogacy is the determination of parenthood. Currently, family and parenthood are defined biologically instead of social terms. This brings an issue in when determining who the legal parents of the child are, mainly between the surrogate mother and the social or foster parents of the child. In some countries like Australia, the law identifies the surrogate mother of a child as its legal mother and any surrogate arrangements that transfer custody of the child to others is rendered void. This brings issues especially if the surrogate mother had offered the services as commercial surrogacy and later claims the child (Tuininga, 240). The issue of parenthood arises because of the fact that the commissioning parents consider themselves to be the real parents of the child because their chromosomes were used. The surrogate mother can also claim parenthood because their biological components were used. This is even more serious were gestation was absent in the commissioning mother and hence the surrogate mother has some genetic relationship with the child. Temana (1108) observes that surrogate mothers normally try to maintain close and intimate relationship with the social parents of the child and this could put those marriages at risk of breaking. Zimmerman (123) states that there is also a high tendency that surrogacy makes problems underlying a marriage to surface for example, it brings into light infertility problem in one of the couple. Ragone (201) states that he commissioning parents go through a complicated process in order to adopt the child they wanted despite the fact that they could have paid heavily to have the child born and that one of them, mostly the father, could be the genetic father of the child. This is because in surrogacy, the father or both parents donate gametes that will be transferred clinically to the surrogate mother. Ironically, the law does not recognize them as the legal parents of the born child despite the fact that this child might not have any genetic relationship with the surrogate mother. One dilemma that emerges in surrogacy is that others do not accept it yet it is a healthy way of creating human life as compared to other methods like cloning. History In Australia, all forms of surrogacy were considered to be illegal and all states passed laws to make this a criminal offense. However, things have changed over the recent years. According to the Lawyers and Legal Services Australia (1), altruistic surrogacy has recently been legalized and this has been done in all Australia states, except for the state of Tasmania. However, commercial surrogacy is still considered by the law to be a criminal offense. These changes in the history of surrogacy in Australia were made possible by the Assisted Reproductive Treatment Act 2008. This Act changed the legality of altruistic surrogacy from 1st January, 2010. In its part, Tasmania maintains that all forms of surrogacy are illegal hence they are banned under the Surrogacy Contracts Act 1993. How the topic has developed overtime Initial surrogacy arrangements were mainly altruistic surrogacy and were mainly meant to help couples in which the wife was having infertility problems or could not carry a pregnancy for one reason or the other. In most of these cases, the surrogate mothers would be close relatives or friends. With time, more people demanded for surrogacy services and this encouraged the commercialization of the service by surrogate mothers. All these indicate that surrogacy was initially intended to help heterosexual marriage partners have children. However, commercialization of surgical services has also opened a door for the utilization of this service by people who are not heterosexual parents for example homosexuals. How society/ religion/ethics has altered over time and how the law has responded to these changes Recently, the issue of surrogacy has gained societal acceptance in some societies like the US. As a result of this, laws that protect contractual agreements exist in some states. There is also increased acceptance of single sex marriage partners and some societies have responded to this by legalizing single sex marriages. This has increased the use of surrogacy as a way of bearing children for such kinds of couples in which normal conception and delivery of a child is not possible. However, this is not seen in all societies for example Australia and Israel. In Australia, single sex marriages is illegal and hence all forms of surrogacy is outlawed in such kinds of relationships. Teman (b 90) states that gestational surrogacy was legalized in Israel in 1996 because of the passage of the Embryo Carrying Agreements Law. Weisberg (98) explains that in Israel, surrogacy is controlled by the state and only infertile heterosexual coupes are permitted to seek for surrogacy services and the surrogate mother should be widows, single or divorced. Some of the laws that exist cruelly are unfair to all stakeholders. For example the 1990 United Kingdom Human Fertilisation and Embryology Act does not allow commercialisation of surrogacy and hence the surrogate mother maintains the right of determination for the child despite being genetically unrelated (Brahams 193). Some of the laws are fair for all stakeholders. In many states, pre-birth arrangements are made whereby names of the parents to be are placed in on the birth certificate from the start. The “Embryo Carrying Agreements Law” is an example of law that provides for this (Teman (c 124). Recommendations Some of the laws should be altered to meet the needs of the stakeholders. This is because all contracts are involving psychologically and some of them also involve financial compensation. A denial of parenthood to the commissioning parents is therefore a breach of contract and unfair to the helpless couple. It should also be noted that desperate and aged couples opt for surrogacy hence their parenthood should be protected by the law as their chances of having babies like other couples is minimal or zero. Conclusion Surrogacy is a healthy option for couples who cannot conceive or deliver a child for one reason or another reason. However, there emerge contentious issues in surrogacy especially regarding the parenthood of the child. The commissioning parents consider themselves the real parents because their chromosomes were used and they hired the service. Some surrogate mothers want to maintain claim of parenthood to the born child because their biological devices were used. The existing laws should therefore be changed to ensure that the parenthood of infertile heterosexual parents is protected even before the contract commences. For example prior determination of parenthood and this should be documented. Works Cited Brahams Diana. “The hasty British ban on commercial surrogacy.” Hastings Cent Rep (1) pp 16–19. 1987. Lawyers and Legal Services Australia. (2011). Commercial Surrogacy Laws in Australia. Online: http://www.legallawyers.com.au/family-law/commercial-surrogacy-laws-in-australia/. Retrieved on 6th, September, 2011. Ragone Helena. Surrogate Motherhood: Conception in the Heart. London. Westview Books. 1994. Reproductive Technology Council (2010). Assisted Reproductive Technology (ART) Glossary. Online: http://www.rtc.org.au/glossary/index.html. Retrieved on 6th, September, 2011. Teman Elly. Birthing a Mother: The Surrogate Body and the Pregnant Self. Berkeley: University of California Pres. 2010. Teman Elly “The Medicalization of 'Nature' in the Artificial Body: Surrogate Motherhood in Israel.” Medical Anthropology Quarterly. (1) pp 78-98. 2003. Teman Elly. 2008. “The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood.” Social Science & Medicine. (7) pp 1104-1112. Tuininga Kevin. “The Ethics of Surrogacy Contracts and Nebraska's”. Surrogacy Law. (2) pp 185-206. 2008. Weisberg Kelly. The Birth of Surrogacy in Israel. Florida. University of Florida Press. 2005. Zimmerman Shirley. “Alternatives in Human Reproduction for Involuntarily Childless Couples.” Family Relations. (2) pp 233-241.1982. Read More