Cross Border Surrogacy – birth of legal debate

msi - surrogacyBy Monica Blizzard, Aitken Partners, Lawyers, Melbourne.

In Australia, “Baby Gammy” has become the face of surrogacy. The story of Australian parents travelling to Thailand to have a surrogate child, and upon the birth of twins, deciding to leave one behind – Baby Gammy – because he suffered from Down Syndrome, has provoked horror, and overwhelming generosity from the Australian public to the surrogate mother who, with limited financial resources and two children of her own, chose to care for the child in her home country.

While the Baby Gammy’s case has created much media attention, couples have been entering into surrogacy arrangements in Australia dating back to the mid-1980s. MSI Global Alliance Melbourne law firm, Aitken Partners (then as Aitken Walker & Strachan) was involved in one of the first successful altruistic domestic surrogacy arrangements to have occurred in Australia. Given the conservative era of the time, great moral, ethical and legal debate has ensued in the years thereafter regarding surrogacy arrangements generally.

Most recently, various stories have emerged bringing to light the dangers of an unregulated system of surrogacy. However, for many couples who find themselves unable to carry their own child, the possibility of another woman carrying their baby enables them to fulfil their long-held dream of parenthood.

In Australia, commercial surrogacy (where the surrogate is paid a fee which is more than reimbursement of her expenses incurred during the pregnancy and birth) is illegal in all states, with the exception of the Northern Territory, but is permitted in other countries. As a result of this, an increasing number of Australians are availing themselves of the opportunity to enter into “cross border” overseas commercial surrogacy arrangements.

Many Australian same sex and heterosexual couples have turned to India and Thailand for commercial surrogacy arrangements. In the United States of America commercial surrogacy arrangements can cost in excess of $150,000, in Thailand the average cost for an Australian couple is $30,000. With the rising costs of IVF in Australia, this represents a viable financial option to pursue fertility treatment.

There is no international regulation of surrogacy, nor is there any international convention dealing with the legal issues involved, leaving children born of surrogacy arrangements vulnerable to the laws of each country, which vary enormously. While countries such as Mexico, Thailand and India have a liberal approach towards surrogacy, all forms of surrogacy are banned in many countries such as China, France, Germany, Italy, Japan, Pakistan, Portugal, Spain, Turkey and Saudi Arabia.

Cross border or international surrogacy arrangements are complex, primarily because it involves a number of legal systems – the legal system in which the child is born, the legal system in which the intended parents live, and the location at which the surrogacy arrangement is being entered into.

In May this year, our family law department was invited to present at the biannual International Surrogacy Conference organised by Surrogacy Australia. The conference was a fantastic opportunity to hear stories from both sides of the journey, namely the surrogate mothers and intended parents as well as from fertility specialists and international agencies who co-ordinate the process.

Ultimately, the recent case of ‘Baby Gammy’ highlights the need for both surrogate mothers and intended parents alike to ensure that they receive the appropriate legal advice and are fully informed of the potential ramifications of the process prior to embarking on the journey. It also calls for universal legislation to provide clarity and certainty for surrogacy arrangements to secure the welfare of surrogate babies.

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