Commercial Surrogacy in Australia - Assignment Example

Commercial Surrogacy in Australia Institution Course Lecturer Date Introduction Surrogacy has become a contemporary contentious issue not only in Australia but also in many other countries (Trowse, p. 199). Complexities arise when surrogacy agreements cannot be enforced. Differences exist among bioethicists, legal professionals and policy makers on payment made to surrogate mothers, commoditization of children and other issues that arise after the child is born. The legal approach to surrogacy in Australia differs since on one hand, altruistic surrogacy has been legalized where on the other hand; commercial surrogacy is taken as a criminal offense. Potential penalties are specified for the residents in some states like the NSW, Queensland and Australian Capital Territory who are involved in international commercial surrogacy. However, surrogacy has become a regular practice to respond to the needs of childless parents in Australia and the world at large. States have moved ahead to promote altruistic surrogacy. However, the move has resulted to more problems and complexities due to its inflexibleness. At the present, commercial surrogacy remain illegal in Australia with differing penalties in different States where such arrangements are established (Ahmad, p.33). Disastrous overseas commercial surrogacy arrangements are on increase. Australians have continued to take the risks even when fully aware of prohibitions that exist in the country. Legalizing commercial surrogacy in Australia is important and law reforms can facilitate a flexible approach to a holistic solution to the problems that have resulted. This discussion critically focuses on continuous problems that arise when altruistic surrogacy is sorely legalized. It will address the loopholes that will likely be filled by legalizing commercial surrogacy. The discussion points on the recent media reviews with the general opinion that is likely to be embraced by the public. It will also engage with specific academic research on surrogacy to offer recommendations as a brief to the parliament and round up the issue in the conclusion. Media Review According to Miller, the surrogacy issue has been like a trap and surrogacy laws need a new life. Though there are ethical dilemmas that arise due to payment required for women who help infertile couples, the current law should undoubtedly be changed p.1. Discussing on the outcomes of the 2010 surrogacy incidents where Nicole Kidman and Keith Urban appreciated their “gestational carrier” there are points that develop to show why commercial surrogacy should be legalized. First, Miller analyses the use of the term “gestational carrier” and the way Australian conceptualized the term as dehumanizing. However, the surrogate mother was proud of the term and took her act as a bold move to allow other to become parents. In other countries like US, commercial surrogacy has worked and a good example involve a Californian woman, Kelly Rummerlhart who in early 2012 visited Sydney to convince NSW Parliament the wrongs of introducing a ban on overseas commercial surrogates. What Australia is uncomfortable about, is the payment concept terming it unethical. However, as Miller discusses, surrogates are motivated by both altruism and narcissism where they understand their potential to give and are thrilled by an experience of seeing other become parents but also accept that they need to be honored in monetary forms. The difference in legislation between Australia and other countries have led Australians to respond by exploiting overseas surrogates which call for a need to legalize commercial surrogacy. The ban of commercial surrogacy can be seen as a denial of women right and ability to use their reproductive capacities. Australians who are desperate to have children may end up moving to overseas countries where commercial surrogacy is not a crime. That will create a more complex problem for the country due to recognition of citizenship of such children and possibly risk the life of surrogates. Without changes on the law that bans commercial surrogacy, hundreds of Australian will continue to break and bend the law due to desperate desire of having children. According to Hill, a national approach is needed to address the extremely complicated commercial surrogacy p.1. Even when commercial surrogacy is illegal is Australia; most parents are paying for medical and legal costs to find a surrogate mother through online avenues and forums. The process is also increasingly complicated with each State in Australia having its different laws on surrogacy. Lawyers have stepped in to help parents arrange on surrogacy and can successfully use the loopholes in different jurisdictions to avoid any negative outcome to intended parents. The law that governs surrogacy in Australia emphasizes on where fertilization process took place, not where the baby is born. In some states, a written contract is not required meaning that intended parents and surrogate may go to another state for the process. The costs of legal advice on surrogacy has increased as people try to understand the implications, outcomes and the options available for them in different States if they arrange for commercial surrogacy. Many parties are brought in the process than it ought to be if commercial surrogacy is realized. Lawyers may give advices that promote the parents’ confidence but would end up bringing more complex future litigations. These costs can be avoided if eventually, commercial surrogacy is recognized. There is lack of efficient law on surrogacy, which means that there is no explicit process that the intended parents can use to enforce the contract in case the surrogate mother changes her mind. That leaves the intended parents prone to exploitation and also increases the cost of legal advice and claims to legal system. The cases where parents apply to the Court so that they may be recognized as child’s guardians can be avoided (Hill, p.2). The severe penalties like jail term, adoption laws and particularly for gay parents and at least $100,000 fine have led most Australians couples to flock to Thailand in order to find surrogates. There is a booming business in Thailand. Though a travel to Thailand seem like a perfect solution for many parents in Australia, being unregulated industry makes it vulnerable to exploitation. Since commercial surrogacy in Thailand is illegal, government officials may exploit those parents who are involved on assertions of human trafficking. New agencies have popped up and an increasing trend of have been recognized for Australian citizenship applications for children born in Thailand. Even though, Australia does not allow children born to surrogate in overseas back in the country, parents are still taking the risk. However, complexities ensues as for the gay couples, the surrogate is listed as a mother to the baby and remain a legal guardian (Abboud, p.1). The couples cannot later go to court in case any controversy arises between them and the surrogate. The feat that they engaged in an illegal activity will ultimately lead to lack of csafety concern for surrogate and thus human rights. Tracking the parental rights for such couples who sneak back with babies born by overseas surrogates would amount to a crime and potential loss of the child. In Thai, the parliament is currently debating on the laws that govern surrogacy arrangements. In case Thai will legalize commercial surrogacy, Australia will have lost a potential economic point and the rate of exported babies will increase. The pressures are mounting in Australia for commercial surrogacy to be legalized to change the trend of couples going overseas and turning the risk imprisonment. The law makers should be clear that people are need of children and they are doing anything to start their own family (Abboud, p.2). Brewster notes a similar incidence where Australian gay couples are going to India to access cheap and reliable arrangements. Gay are prohibited to use surrogacy as a means of obtaining a child in Australia. Similarly, India has also restrained gay couples from accessing such arrangements. However, since the end of 2012, restrictions on gay parents were set on surrogacy issue in India. There is a requirement of positive DNA test by Australian High Commission which makes it hard for gay parents to depart with the surrogate children back to Australia. The changes in visa requirements have held a number of parents who have breached the Indian law. Most children will end up being left stateless if the Department of Immigration and Citizenship does not issue citizenship to those infants created under a breach of Indian law. Those parents who had finished arrangements with surrogate and in waiting now fear prosecution and potential loss of a baby due to denial of citizenry. Literature Review As Millbank, p. 165 observes, throughout Australia, there have been recent law reforms that have allowed legal transfer of the legal parentage after surrogacy arrangements. This is seen as a move to liberalize reforms. However, there is a complex issue that arises following the eligibility rules. The rules may end up excluding many needy families than they ought to help. The defense of surrogacy policy argues that, the policy prevents exploitation of women, the birth mothers, prevent commercialization of reproduction as well as exploitation of surrogate mothers and to protector the current and future interests of children who are born in such ways. It is however feared that the reforms may end up failing to meet the aims. There are increasing numbers of children that need to have a legal relationship with their parents. When the regime excludes the children that are conceived outside Australia jurisdiction, it will increase social problems and make the life of these children harder. The regime has not worked to prevent some potential harm since the harms are exported elsewhere in what has seen as increasing incidences of international surrogacy in Australia. The next law reform should aim at creating more flexible as well as inclusive approach towards parental transfer. In UK, there is a flexible approach and such is recommended in Australia. Roy and Vittal, p.167 observes that, surrogacy contract involves the genetic parents, surrogate mother and a surrogate baby. Australia prohibits surrogacy which opens up legal complexities due to transnational surrogacy and possibilities of victimization to surrogate child. India has lately accepted commercial surrogacy and will become a top destination spot to fertility tourists and mostly from Australia where there are conflicting domestic laws. India will become booming markets for surrogate due to its added advantages of lower costs on top of the added incentive of relaxed legislation. There are ambiguities that surround commercial surrogacy stretching from commoditization of a child, dehumanization of surrogate mother and a number of after delivery problems that may arise between the intended parents and surrogate mother. However, surrogacy trade will continue to flourish in different jurisdictions. Inflexible legislations will also encourage infertility clinics to come up with their own and unregulated procedural guidelines as well as indulging in unscrupulous practices (Ahmad, p. 33). Prohibition of commercial surrogacy in Australia and legalization in other countries has led a number of Australians to exploit the difference that exist in other countries. What was enacted and thought that will protect the ethical issues cited does not therefore prevail. This raises the questions of effectiveness of surrogacy laws in Australia. The well meant regulations of altruistic surrogacy and criminalized commercial surrogacy in Australia will likely become ineffective due to cross-border situations. There are countries without any will to regulate the business so long as their citizens are earning from the arrangements. However, that does not promise safety and smooth process for the Australians who are seeking the services. Australia will only solve the problem by reforming its laws and ensure multilateral cooperation which would respond more effectively to cross-border surrogacy issues and arrangements (Keyes, p.30). Australia will continue to be faced with competing interests until it comes up with adequate legislation. The problems will delve from ethical to legal, economic and social if not responed to early by reforms. Overseas commercial surrogacy continues to be legally challenging. Parents have turned to it and commonly utilized it due to advantages of assisted reproductive technology. Subsequently, complex and competing policies have tested the relevant Family Law legislation which maintain on parenting orders. Judicial decisions are inconsistent and legislation inadequate. India and Thailand has continued to increase in popularity as surrogacy destinations. Australia law should take a bold step so as to address the competing interests of illegality overseas commercial surrogacy; the welfare concerns, the children and certainty after such arrangements are complete. Since parents have not adhered to the limitations of overseas commercial surrogacy even after being aware of the situation, the law will have to address multiple cases than it would have if flexible surrogacy laws exist in the country (Trowse, p.202). In legalizing the commercial surrogacy, there are a number of possibilities that are seen and are more favorable than it is the case today. First, legalizing it will stop the exploitation of overseas women. When Australians flock to India, US and Thailand for surrogacy arrangements, Australia economy continue to lose while providing the other countries with an economic advantage. Second, it would ensure that agreements are properly regulated so that the child will receive proper protection. Currently, the children born overseas through surrogacy arrangements are not recognized by the law and that means that their safety and security is also at stake. Thirdly, if Australia legalizes commercial surrogacy, the possibility of exploitation would be less in domestic arrangements than it is overseas. The women would not be forced or threatened to become surrogate. They would also be paid well and receive better medical care (Cook, p.1). Cook further argues that, at that point, even the progressive ethicists differ on the contentious topic. Some bioethicist strongly opposes commercial surrogacy claiming that even in Australia, exploitation can still exist and legalizing it would create a situation where women are coerced economically. Other bioethicist is confident that the law can enshrine safeguards for the surrogates. Legislation that allows open commercial surrogacy will bring in a network of trained and registered health professionals who can be followed by the parents when complications that result to lack of care arise. The government can ensure that the institutions that carry out surrogacy are licensed and monitored. Legalization will also enable records of child’s parentage to be documented and maintained and in case issue arises in future between the surrogate child and the intended parents, the parties can be brought together by the law and set new agreements. The Family Law Act may not be working well as it should, and the policy makers need to evaluate and report on the possible reforms and development. Advice to Parliament The legalization of altruistic surrogacy and criminalizing the commercial one in Australia is a step forward that leaves a desire to move ahead with more flexible reforms. While Australia was reasonable when criminalizing commercial surrogacy, the outcome and available loopholes in the law between States and countries will not see the law becoming as effective as it should be. Prohibition will only open floodgates of cases and complexities in Health and Immigration Departments. Tougher border laws may lead to increase financial burden to the government for children left to immigration department. Legal costs and exploitations are also highly prevalent. The law should regulate these negative outcomes by its reforms. As it proceeds with the reforms, there are a number of issues that need to be addressed well in order to avoid future complexities. First, the issue of human rights should be realized where surrogate mother should consent after being informed of the surrogacy arrangements. The women will thus use their reproductive capabilities in assisting others as well as earning from the arrangement. Second, the law should be clear on safety and protections of surrogate children to avoid the contentions that may arise after the arrangement are concluded. The children should be aware of their rights as they grow to allow them access the available assistance in case they face any mistreatment or when in need to make their own decision. Thirdly, legalizing commercial surrogacy is not a solution to end overseas surrogacy. Overseas surrogacy should continue to be banned in Australia but this would only come if tougher penalties are established to those who seek them. The possibility that overseas surrogate will continue is from the fact of lower costs involved in some countries. The government needs to ensure regional and international common laws governing surrogacy and avoid these complexities. Conclusion So far, surrogacy laws in Australia have moved a step ahead by allowing altruistic surrogacy but have left many more ahead leading to its inadequacy. While the prohibitive law insists on safeguarding the ethics, it opens up multiple problems that would require it to come up with flexible arrangements. The way commercial surrogacy was criminalized in Australia did not take into account the available options that Australian would find to meet the need for children. Even in full awareness of the penalties that arise from prohibited overseas commercial surrogacy, parents have continued to seek the services elsewhere where the laws are open to it or not so strict on the issue. The outcomes are dire with a greater likelihood of exploitation of surrogate mothers and the intended parents. There are also lengthy processes and costs involved due to legal advice costs, move to overseas destination and period of time taken before the child is delivered. Another complex issue has been realized where Immigration Department is faced with challenges of proving DNAs and increasing likelihood of holding the surrogate children who are illegally brought in the country. Unlicensed and unregulated clinics and clinicians may continue to exploit people and perform non-standard services to those in need of the surrogacy arrangements. The legal system in Australia will have to address many cases that will arise between the parents and surrogate children in future. It is explicit that more flexible arrangements are needed in Australia particularly by legalizing commercial surrogacy. There are benefits that the law will promote and successfully solve the problem of overseas commercial surrogacy arrangements. The law will regulate the surrogacy contracts protecting all the parties involved. It will ensure standard procedures, lower the cost of the process and allow the legal system to follow and attend on arising cases since the aggrieved parties will be confident to identify and report on unbecoming practices. Work Cited Abboud, Patrick. “Wombs for hire: Aussie couples flock to Thailand to find surrogates.” 30 October 2013. SBS. 05 November 2013 < http://www.sbs.com.au/news/article/2013/10/29/wombs-hire-aussie-couples-flock-thailand-find-surrogates> Ahmad, Sartaj, et al. "Utilization of assisted Reproductive Technology as a Surrogacy and Related Issues." International Journal of Contemporary Surgery1.1 (2013): 33. Brewster, Kery. “Surrogacy laws may leave Australian babies stateless.” 05 march 2013. ABC News. 05 November 2013 < http://www.abc.net.au/news/2013-03-05/surrogacy-laws-could-leave-australian-babies-stateless/4552460> Cook, Michael. “Australians debate commercial surrogacy.”14 December 2012. BioEdge. 06 November 2013. < http://www.bioedge.org/index.php/bioethics/bioethics_article/10347 > Hill, Kate. "Story of a Surrogate: the legal side." 23 July 2013. ABS South East SA. 05 November 2013 . Keyes, Mary Elizabeth. "Cross-border surrogacy agreements." (2012): 28-50. Millbank, Jenni. "New Surrogacy Parentage Laws in Australia: Cautious Regulation or 25 Brick Walls." Melb. UL Rev. 35 (2011): 165. Miller, Barbara. “The Surrogacy trap: why our laws need new life.”24 December 2012. The Drum. 05 November 2013 < http://www.abc.net.au/news/2012-12-24/miller-whose-baby-is-it/4439810> Roy, Shubhangi, and Sankeerth Vittal. "A womb unknown: The socio-legal complexities of surrogate child custody." Scientific Committee of Reviewers (2013): 167. Trowse, Pip. "Surrogacy: competing interests or a tangled web?" The Queensland Lawyer 33.3 (2013): 199-209. Read More