Renewed push for international regulations on surrogacy

Baby picture 

The following opinion piece by Dr Sonja van Wichelen from the Institute for Culture and Society was originally published on ABC The Drum.

Growing concerns about global surrogacy arrangements have sparked calls from researchers and lawyers at the 'Forum for International Adoption and Global Surrogacy' for a new international convention to regulate the practice. The Australian public has had a crash course on the complex moral and legal issues involved in global surrogacy through the Baby Gammy controversy. But is it actually possible to have an international agreement when there are such vastly different notions of what constitutes a child, a parent and family life in different countries?

Academics and lawyers advocating for a new international legal system covering global surrogacy are calling for a Hague Convention similar to the Convention on Intercountry Adoption, which Australia ratified in 1998. Yet making such a legal instrument in the realm of private international law is a very tricky matter, and international surrogacy raises some very unique questions not encountered in adoption.

In contrast to international adoption – where states could agree that it was essentially a good thing – surrogacy is a much more contentious practice, with most countries prohibiting commercial surrogacy. The implementation of an international regulation implies an institutionalization of a transnational practice, yet the practice is still morally disputed in countries such as France, Germany, and Australia.

Many policy makers from across the world are calling for more research into how international surrogacy arrangements can create identity issues of the child. Adult adoptees have long pleaded for "legal openness", and have worked for the right to access their birth and adoption documents. If global surrogacy were to be sensitive to these issues, anonymity would need to be avoided, and genetic, social and other identifying information would need to be registered and documented for possible later use of the resulting child/adult.

Any new legal framework would need to cover up to five parents: the birth mother, the genetic mother, the genetic father, the intended mother and intended father. But national laws differ in how they define such parentage in legal terms, and much of that is related to cultural understandings of kinship. For example, the current laws in India allow for commercial gestational surrogacy arrangements where the child is legally assigned one or both of his or her genetic parents. Although in Australia this child would be granted citizenship by descent, this does not necessarily mean that the intending parents are considered legal parents in Australian law. To create a convention for global surrogacy, minimum agreements between states are needed on the issue of legal parentage, otherwise some children may end up with an unclear status in relation to their nationality or citizenship and become stateless subjects.

The forum also discussed the possible exploitation of women from developing countries such as Thailand and India. Anthropological research in India informed us that women opting for surrogate arrangements often come from the lower middle class and that their choices are informed by their dire economic situations. Once contracted, these women are often subjected to invasive medical procedures such as hormonal treatments (to boost fertility or to block breastfeeding) and compulsory caesarean sections. They are also expected to follow a strict living and diet regime during the nine months of pregnancy in the confinement of a clinic far away from their own village, family, and children. Many pregnancies result in miscarriage or forced abortions, with the financial agreements terminated once the pregnancy does not result in a live birth. In instances such as these, labour laws are needed to help these women by giving them rights as they negotiate the terms of their contracts. Yet this approach beds down the commodification of babies as it defines them as the end product of a contractual agreement.

In sum, while many Australians are now clambering for international regulation following the Gammy case, the Forum for International Adoption and Global Surrogacy discussions implied a degree of caution. One opinion is that the regulation of global surrogacy does not require a convention within international private law, rather it could be part of national labour laws in conjunction with public international laws such as the CEDAW, which protects women's rights, and the UNCRC, protecting children's rights.

In the meantime, more research is needed to study the effects of surrogacy arrangements on women and children. And it could prove useful to compare the practice with other forms of international family-making practices such as adoption. If we are to truly make a global effort to better regulate international surrogacy arrangements, we need to fully understand how they will impact on everyone involved, particularly the children themselves.

Ends

21 August 2014

Mark Smith, Senior Media Officer