Story by: Sarah Christian
Photo by: www.sxc.hu
Ensuring the child's best interest in custody battles is complicated enough. Will mum still be mum? Or is it now step-mum who is mum? And no matter what the law recognises, who are the true parents of adopted children? If these questions are difficult, try one more - Surrogacy - a legal minefield unto itself.
The ability of the law to effectively deal with the social and ethical complexities of surrogate pregnancies was tackled by Associate Professor Anita Stuhmcke at the recent UTSpeaks public lecture. Having studied surrogacy and the laws surrounding it for more than 15 years, Stuhmcke says it is the definitional aspect of surrogacy that distinguishes it from adoption. "In surrogacy arrangements, a child is created with the express intention of giving it up to identified parents. It is this important difference together with the surrogacy being combined with medical innovations in assisted reproductive technologies such as IVF which result in surrogacy being a legal dilemma".
The complexities of surrogacy were illuminated by Stuhmcke in her recount of the birth of Federal Senator Stephen Conroy's daughter in 2006. Senator Conroy and his wife, who was infertile due to ovarian cancer, traveled from Victoria to New South Wales to engage in IVF surrogacy. The procedure was illegal under Victorian law.
Stuhmcke says that this issue is indicative of "the lack of legal protections for the children born as a result of surrogacy arrangements". In this example the Conroy's, the party that donated the egg and the surrogate mother amounted to four adult parties in the procedure. Stuhmcke explained that under existing law "the birth mother was the only one of the four adults who had legal rights with respect to Isabella following her birth". This was because "the donor relinquished her rights at the time of embryo creation and Senator Conroy, the biological father could not be recognised legally. Similarly, his wife had no legal standing". For the Conroy's to be legally recognised as Isabella's parents, it took an application to the Family Court of Australia for parenting orders which were granted 12 months later and an estimated cost of $40,000 - $50,000.
Although Stuhmcke welcomes the "flurry of legal review" since 2006 as a positive step; she predicts that the practice of surrogacy will remain a recurring legal dilemma. Further, that the suggested reforms will fail to prevent the dilemma of surrogacy regulation recurring.
Stuhmcke describes the fragmented views of surrogacy in different Australian jurisdictions as "medicine by postcode". She elaborates that "depending on where you live and what relationship you are in, you may or may not be able to form a family through medical surrogacy". For example, "in NSW if using traditional surrogacy where the surrogate mother uses her egg and the semen of the intending father - you may advertise for a surrogate and may pay her. In the ACT you can't advertise for nor pay a surrogate".
Unifying these vastly different stances into a unified piece of legislation is a great challenge. At the core of the issue is the debate about definitional aspects and merits of altruistic surrogacy versus commercial surrogacy. Stuhmcke says that there is a variety of views on what altruism means; it could mean "no reimbursement at all, or allows some recognition of financial payment, or that altruism could include reimbursement to the surrogate mother for maternity clothing, legal fees..." and so on. Commercial surrogacy also has varied opinions. On one hand there is the view that "surrogacy ought to be freely marketable due to the property interests each of us holds in our reproductive capacity" and on the other that this practice "commodifies women's bodies and identities... [so that] the price of babies may be equated to the price of soybeans".
Stuhmcke recalled in her address that during the 17 years that she has investigated the practice of surrogacy, she has often been asked what she thought of the practice. Her answer was that she did not know - "I could say I did not know as I had no personal compass to go on - my interest in the area was not driven because I knew someone going through the process. Instead it was the mirror that surrogacy reflected of our society which interested me as the practice throws many of our cultural and familial normative assumptions into sharp relief..." However, 17 years on, Stuhmcke admits her answer to the question has changed. She explains "I now do know what I would do to regulate surrogacy which is perhaps why I feel the current round of law reform will leave us with a recurring dilemma. My answer is that I would put the children first". Although the debate concerning the banning of commercial surrogacy or what form altruistic surrogacy should take is an important one, Stuhmcke argues that it overlooks the "immediate need that all Australian legislatures put in place mechanisms for transfer of parentage of children and other mechanisms of legal protection such as accurate birth certificates".
To begin to address such a dilemma Stuhmcke says that a coordinated national Australian approach is imperative. Accompanied my monitoring, evaluation and research into the practice - the legal protection of the rights of the children born through surrogacy can be better protected.