A case for ‘cautious’ commercial surrogacy in Australia

In the last 30 years, we have seen 26 public inquiries into surrogacy in Australia. In recent years all states and territories have liberalised their laws to allow for unpaid surrogacy to occur with the assistance of licensed fertility providers, and to provide for intended parents to acquire legal status. But our system is still not working.
In 2010-11 there were just 16 recorded surrogacy births within Australia, while 394 babies were born in India to Australian citizens – the majority of them almost certainly via commercial surrogacy. We need to make big changes to allow surrogacy to be more accessible at home, rather than exporting our fertility needs to other countries.

The fundamental principles of fairness and safety require the informed and continuing consent of all participants in surrogacy, especially of the birth mother. When most surrogacy involving Australians is taking place offshore, it’s plainly not accessible and also may not be safe, or not as safe as it would be onshore. Nor, where poorer countries are the providers, is it necessarily fair.

Despite remarkably little regulation in the United States, surrogacy agencies and clinics have adopted a fairly common set of practices and standards, including psychological screening, counselling and support services. Research consistently shows that US surrogates are not impoverished or motivated by financial concerns, and are largely satisfied with their experience.

In contrast, Australian women are expected to take surrogacy on as altruistic act and can only be paid a very limited amount for documented expenses. This drives people to evade the system, masking unlawful payments onshore, or going offshore to India and Thailand, resulting in reduced or zero access to professional support services and ethical safeguards.

The more work I do on assisted reproduction, the more I see that professional support services are an important part of informed consent and the decision-making processes of parents. In the rare instance when things go do go wrong, such as in the Re Evelyn case in 1998, it usually involves informal arrangements in which none of the parties had any screening, counselling, or legal advice before the arrangement, nor any support services during or after it.

Ideally, governments should provide screening, matching and counselling services, but if, as is currently the case, they don’t, it may be better to have commercial providers taking on this role rather than no one at all.

A major argument against payment to surrogates is that it may act as undue influence that impairs informed consent. This is an important consideration. Surrogacy works when a woman voluntarily undertakes a pregnancy and is happy to relinquish a baby she does not regard as her own. If she has agreed only because of money and not because she regards that baby as someone else’s, everything falls apart. But in addition to guarding against payments that are too high, we should be asking whether surrogates are paid too little.

Women who undertake pregnancies for others in surrogacy arrangements are performing labour (in both senses) and they are undertaking risks. Paying nothing does not protect or value this role.

In Australia, altruistic surrogacy undertaken through licensed fertility services means that doctors, nurses, social workers, counsellors, scientists, technicians, storage facilities, receptionists, cleaners and delivery people are all paid. So are shareholders. Only the birth mother is not.

There are a range of ways that surrogates could be paid within a regime of fair compensation that still guarded against improper inducement. In the UK the fertility regulator recently set a flat compensation payment of £750 ($1,100) per cycle for egg donors in recognition of the pain and risks they undertake. Payments of £15,000 are also regularly accepted by courts in the UK as reasonable compensation for surrogates, although there is no set guideline. Setting a clear minimum (representing a labour based contribution or compensation for risk and burden) would provide certainty if accompanied by proper screening protocols and regulation to guard against unfair inducement.

There are important concerns about commercial surrogacy practices that go beyond the question of how much money is paid and go to who is paid for what. Problematic practices in surrogacy common in both developed and developing economies include high multiple birth rates (which are dangerous to babies and surrogate); enforceable contracts (which can prevent surrogates from having control over their pregnancy, and which compel relinquishment after birth), and the widespread use of anonymous egg donors. None of these are mandated by commercial markets, but they are strongly associated with them.

An Australian system of compensated surrogacy could avoid such risks. We would continue to centre the informed and continuing consent of the birth mother through important safeguards such as ensuing that she has full control of pregnancy care and decisions, and that consensual relinquishment of the baby and her parental status occurs only after the birth. We already have very high clinical and ethical standards operating in tandem with government regulation to prevent multiple embryo transfer and to record donor identity. Commercial surrogacy could be contained within the existing successful framework of health regulation in Australia rather than distorting clinical and legal practice, as it has arguably done in other countries with far less regulation. This doesn’t mean copying commercial markets – it means learning from them.

An Australian system which allowed for advertising, professional intermediaries and payment, if carefully regulated, would be safer and fairer than the now widespread practice of Australians travelling overseas for surrogacy.

Article: 3rd September 2013 www.theguardian.com

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