EDITORIAL by Peter WestmoreNews Weekly
Baby Gammy case highlights weakness in surrogacy laws
, August 16, 2014
The tragic case of baby Gammy, conceived using genetic material from an Australian couple but gestated by a poor Thai woman, then abandoned when it was discovered that he had Down Syndrome, highlights all that is wrong with current surrogacy law in Australia.
Surrogacy is the medical process by which a woman carries an IVF baby to birth, then surrenders the child to others.
Medical technology has made it possible for babies to be born who are not related to the birthing mother. Because infertility is a serious medical problem, some couples — and more recently single people wanting a child — have resorted to surrogacy arrangements to get a child, instead of the traditional method of adoption.
Because the Commonwealth does not have clear constitutional power in this area, surrogacy in Australia is governed by a collection of state and territory laws.
State laws across Australia permit what is known as “altruistic surrogacy”, but uphold the principle that people are not permitted to enter into commercial surrogacy arrangements.
The current laws in Australia are defective in that they allow both single people and couples of whatever sex, to be registered as the parents of children produced through artificial reproductive technology.
Effectively, surrogacy breaks the natural biological link between children and their genetic and birthing parents and/or permits children to be born without knowing their natural father and mother.
Surrogacy therefore overrides the child’s fundamental right to know his or her parents, and treats children as commodities.
In the case of baby Gammy, a further possible complication is that he may be entitled to Australian citizenship, as his biological parents are presumed to be Australian. His birth mother, who is Thai, is emphatic that he should remain with her family in Thailand.
Over many years, official inquiries in Australia and a number of other countries, including Canada, have concluded that commercial surrogacy arrangements — where women are paid to bear children for others — are wrong in principle.
In some countries, the law simply says that surrogacy agreements are legally unenforceable. In others, commercial surrogacy is illegal.
In all states and the Australian Capital Territory, arranging commercial surrogacy is a criminal offence, punishable by a term of imprisonment.
The baby Gammy case reveals that a significant number of Australians are travelling overseas to bypass Australian surrogacy laws, going to countries where the surrogacy laws are either weak or non-existent.
Until recently, it seems that most commercial surrogacy arrangements took place in India where this practice was unrestricted, and there was an abundant supply of poor women who, for a fee, were willing to carry the babies for rich people, often foreigners.
One report said that there are 500 fertility clinics in India, and around this business has grown a large medical tourism industry, including agencies which handle the complicated business of travel, accommodation, medical procedures (including liaison with Australian fertility clinics), legal issues, and dealing with Indian government agencies.
Inevitably, this business attracted rogue operators, leading to a government crackdown.
Over recent years, the business has grown in Thailand where it is completely unregulated.
The only reason why baby Gammy attracted attention was that he was reportedly abandoned in Thailand by an Australian couple, after the birthing mother had refused to have the child aborted. The child, who suffers Down Syndrome and has a congenital heart defect, is being raised by his birthing mother in desperately poor circumstances.
When the plight of the baby became known, many people generously donated money to help provide for his medical care, and to support the family which is caring for him.
However, the wider issue here is whether Australians should be able to enter into commercial surrogacy arrangements overseas which are illegal in Australia. Already, there are calls for commercial surrogacy to be legalised here, despite the repeated recommendations against it.
Ideally, states which have power over surrogacy should implement legislation to make international commercial surrogacy arrangements involving Australians illegal, just as they are within this country.
If that process proves to be too difficult, the Commonwealth government should examine whether, under the foreign affairs power of the Commonwealth constitution, the federal government could legislate.
Under Section 51 xxix, the Commonwealth has power to enact legislation relating to “external affairs”, usually construed to include international treaties and the like, but which has been interpreted to cover acts committed overseas which are considered to be crimes in Australia.
Unless the states, territories and the Commonwealth respond to this challenge, situations such as that involving baby Gammy will continue to occur.
Peter Westmore is national president of the National Civic Council.