| Author: | Anita Stuhmcke School of Law, University of Western Sydney |
| Subjects: | Biotechnology law and legislation (1 other article) Surrogate motherhood law and legislation Australia (1 other article) |
| Issue: | Volume 3, Number 1 (May 1996) |
| Category: | Refereed Articles |
1. In the last decade, five Australian jurisdictions have introduced legislation to regulate the practice of surrogate motherhood - Victoria,[1] South Australia,[2] Queensland,[3] Tasmania[4] and the Australian Capital Territory.[5] While the legislatio n is not uniform, each jurisdiction distinguishes between the concepts of paid and unpaid surrogacy. In the majority of jurisdictions, the legislation treats paid surrogacy more punitively, attaching criminal sanctions to its practice while leaving unpai d surrogacy unregulated. In recent years, this distinction has become increasingly marked. For example, in Victoria in 1993 the Victorian Cabinet recommended that unpaid surrogacy be legalised[6] and the Australian Capital Territory legislature allowed parties to an altruistic surrogacy agreemen t to seek professional assistance in relation to the formation of such an arrangement.[7]
2. This article questions this growing legislative perception that surrogate motherhood falls into two identifiable categories - 'altruistic' where no money is paid to the surrogate mother for her "services" and 'commercial' where money is paid. The aim of this article is not to pass judgement on the practice of surrogacy, but rather to identify and debate the merits of a legislative distinction between commercial and altruistic surrogacy.
3. The article commences with an outline of the practice of surrogate motherhood, it then analyses the legislation which regulates the practice in each jurisdiction and evaluates the legislative categorisation of surrogacy through a comparison of the obj ections to commercial and altruistic surrogacy. Finally, the ramifications which the legislative distinction between commercial and altruistic surrogacy has for reproduction and family are considered and legislative reform is advocated.
4. In our society infertility has historically been seen as a problem which merits treatment.[8] Surrogate motherhood provides some couples with their only hope of raising a child genetically related to at least one of them. Surrogate motherhood describes an arrangement where a woman (the surrogate mother) agrees to become pregnant and bear a child for another person or persons (the commissioning parents) to whom the custody of the child will be transferred directly after birth.
5. Surrogate arrangements may be made with or without payment to the surrogate mother. 'Commercial surrogacy' is the term used to describe an agreement where payment is made to the surrogate mother. 'Altruistic surrogacy' is the term used to describe the in formal arrangements where no money is paid to the surrogate mother. Such altruistic agreements are often referred to in the literature as being made between friends and relatives.
6. The initial demand for surrogacy is likely to come from women, or the partners of women who are physically incapable of pregnancy, the most obvious candidates being women who have had a hysterectomy or a history of spontaneous abortion. Other medical conditions such as kidney disease or multiple sclerosis[9] make pregnancy dangerous and therefore may leave a woman infertile for practical purposes.[10] Further, it has been suggested that some women may desire a surrogate to bear their child for aesthetic or career reasons.[11] In practice[12] two methods of surrogate motherhood are employed:
7. It is only in the last 20 years that surrogate motherhood has increasingly become an issue of national and international public debate.[19] Factors such as the growth of infertility in modern society,[20] coupled with the declining number of children available for adoption,[21] the development of the surrogacy contract and commercial surrogacy agencies in the United States in 1976[22] and the introduction of new technologies such as IVF which can be combined with surrogate motherhood, have resulted in increasing publicity and public interest in the formation of such agreements between infertile couples[23] and surrogate mothers. Although there has been much publicity surrounding the practice of surrogacy the incidence of surrogate motherhood in Australia is not known, although it has been estimated that between 1977 and 1987 "about 40 surrogate births would have occurred in Australia."[24]
8. It is important to note that much of the language in this area has been criticised and is used in this article only due to its widely accepted usage. For example:
9. There have been 10 committees of inquiry in Australia into surrogacy and related reproductive technologies.[29] All but one of these committees[30] either "expressed grave reservations about the practice or recommended that it be prohibited".[31] It is therefore not surprising that the legislation regulating surrogacy, although not uniform, does contain similarities. In particular the legislation in each jurisdiction:
10. Additionally, the legislation distinguishes between the concepts of altruistic and commercial surrogacy as explained below.
11. In Victoria, the Infertility (Medical Procedures) Act 1984 ("the Act") renders both commercial and altruistic surrogacy arrangements void and therefore unenforceable.[35] The Act distinguishes between commercial and altruistic surrogacy in that criminal penalties are imposed upon the parties to a commercial surrogacy agreement[36] while parties to an altruistic agreement are not penalised.[37]
12. Although altruistic surrogacy arrangements have not been specifically prohibited by the Victorian legislation, the Act together with other pieces of legislation combine to render the successful completion of such an arrangement difficult. For example, in relation to IVF surrogacy, s13(3)(d)(i) of the Act states that an IVF procedure must not be carried out unless the recipient is "unlikely to become pregnant as the result of a procedure to which this section applies". The strict interpretation of this section means that the surrogate mother must be infertile to receive IVF treatment and therefore precludes fertile women from acting as surrogates.[38]
13. Further, if parties choose to employ artificial insemination to achieve their desired ends they will run into the unintended effect of s 10C of the Status of Children (Amendment) Act 1984 (Vic) which deems the resulting child of a surrogacy arrange ment to be that of the surrogate mother and her husband (if applicable) while denying the relationship between the child and the commissioning sperm donor.[39] As a consequence, the commissioning couple must rely upon the relevant adoption and guardianship and custody statutory provisions to achieve a successful surrogacy agreement. This becomes complicated by the strict requirements of the Adoption Act 1984 (Vic) which prohibits private adoption and discourages adoption by relatives.[40] However, it is frequently suggested that it is relatives who are most likely to participate in an altruistic surrogacy arrangement.[41]
14. The situation is further complicated because the distinction between commercial and altruistic surrogacy is undefined in the legislation. For example, in the case of an 'altruistic' surrogacy arrangement, should the woman who has agreed to be the surrogate mother be allowed health care costs, home help throughout the pregnancy or, alternatively, no assistance whatsoever?
15. Section 30(2) of the Act 1984 (VIC) states that a person shall not:
"(b) make, give or receive, or agree to make, give or receive, a payment or reward for or in consideration of the making of a contract, agreement or arrangement under which a woman agrees to act as a surrogate mother; or
(c) receive or agree to receive a payment or reward in consideration for acting or agreeing to act as a surrogate mother."
16. On a literal interpretation, even compensation for medical expenses may be caught under these provisions. On a broader interpretation, it may be argued that these provisions aim to prohibit the payment for the use of reproductive services and thus payments not made directly for such services may not be penalised under the Act. Indeed the Waller report states that in an altruistic surrogacy agreement an arrangement that the surrogate mother's "medical, hospital and travelling expenses be paid would not result in [the arrangement] being labelled as commercial".[42] However, the legislation in its present form remains ambiguous on this point.
In the Australian Capital Territory the Substitute Parent Agreements Act 1994 ("the Act") renders substitute parent agreements[43] void.[44] It is an offence for anyone who does not intend to be a party to a substitute parent agreement to procure another person to enter an agreement with a third party.[45]
17. The Act clearly distinguishes between commercial substitute parent agreements and "non-commercial substitute parent agreements".[46] A "non-commercial" or altruistic agreement includes those agreements under which the expenses of the surrogate mother are paid.[47] The Act distinguishes between commercial and altruistic surrogacy by making it an offence for persons to enter into a "commercial substitute parent agreement"[48] while leaving altruistic agreements without penalty. Additionally, if advertising is made with respect to a commercial substitute agreement the penalty is a fine or a period of imprisonment or both. If the advertising is made for the purposes of altruistic surrogacy the penalty is a fine only.[49] Perhaps most importantly, the Act further distinguishes between commercial and altruistic surrogacy by making it an offence for a person to knowingly provide any professional or technical services to a woman to facilitate a pregnancy with respect to the former[50] while leaving the latter unregulated.
18. In essence commercial surrogacy is considered a criminal act in the Australian Capital Territory while altruistic surrogacy is allowed to proceed. One reason for so doing was stated in parliamentary debate by Mrs Carnell:
19. "Provided arrangements for non-commercial surrogacy are between people who know each other well; who have a long standing relationship, that is often sisters, cousins etc; who trust each other and who have a clear commitment to each other's well being; and who have the support of their families and who are informed about the procedures and the consequences and who are willing to participate, in other words, it is their consent, such altruistic surrogacy should be allowed to proceed".[51]
20. This is not to imply however that the Australian Capital Territory has explicitly condoned such agreements. The Act states that altruistic surrogacy arrangements will be unenforceable in a court of law. This means that while entering an altruistic surrogacy agreement is not an offence, the agreement is legally ineffective and the surrogate mother will be the legal mother as if no agreement had been made.[52] What is important to note however, is that the Act does explicitly allow and, to an extent, encourages the formation of such arrangements. The penalties for advertising for altruistic surrogacy are not severe[53] and technical services may be provided to parties to such an arrangement, including medical services and legal advice.
21. However, while the effect of the Act is to allow altruistic surrogacy agreements to proceed, practically any such agreements will face hurdles. More specifically, the current law in the Australian Capital Territory indirectly raises impediments to the realisation of substitute parent agreements.[54] For example, s 5(1) of the Artificial Conception Act 1985 (ACT) provides that where a married woman gives birth to a child as the result of artificial conception (either artificial conception by donor or IVF) with the consent of her husband, the donor of the gametes will have no legal relationship with the child and the husband is presumed to be the father of the child. Therefore the commissioning parents will have no claim over the child in such an agreement. Additional impediments arise following the birth of the child when issues such as the names on the birth certificate and adoption arise. For example, under s 19 of the Adoption Act 1993 (ACT) all adoption applications are subject to review by an approved adoption agency before a grant of adoption by the Court and in any proceedings relating to a child born from a surrogacy agreement "the welfare and interests of the child born as a result of a pregnancy that was the subject of the agreement shall be regarded as the paramount consideration".[55]
22. In South Australia a surrogacy contract[56] and a procuration contract[57] are illegal and void.[58] The Family Relationships Act 1975 (SA) ("the Act") distinguishes between altruistic and commercial agreements, making it an offence to be involved in a commercial surrogacy agreement,[59] while not penalising parties to an altruistic surrogacy agreement. One reason for this, as stated in parliamentary debate by the Honourable R J Ritson, is :[60]
23. "...one cannot legislate to prevent private agreements amongst people to arrange for the pregnancy and birth of a child and for a friend to have custody of that child as if that person were the parent. I guess that that will go on to a certain extent, but we need to prevent some of the distressing and unhappy litigation that has occurred in other countries and prevent, in particular, the transatlantic trade which has occurred, where agencies in the United Kingdom have advertised surrogacy services and people from North America have crossed to England to take advantage of those services."
24. As in other jurisdictions, parties to an altruistic surrogacy agreement in South Australia, face unintended obstacles to the successful completion of such an arrangement. For example, s 10(d)(1) of the Act states that where a child is born to a married woman as a result of the artificial insemination by donor, and her husband has consented to the procedure, the woman's husband is presumed to be the child's father. This means that even if the commissioning couple produced the sperm and are therefore biologically connected to the child they will be prevented from asserting any right to parenthood.
25. In Queensland the major provisions of the Surrogate Parenthood Act 1988 (Qld) ("the Act") are identical with respect to commercial and altruistic surrogacy contracts. For example, a prescribed contract is void,[61] the parties who enter into or offer to enter into a prescribed contract may be liable for a fine, imprisonment or both[62] and the same restrictions as to advertising apply to both altruistic and commercial surrogate contracts.[63] The only substantial difference which appears in the legislation is that in relation to commercial surrogacy contracts there is an additional provision, s 3(1)(b) of the Act which states:
26. "A person shall not make, give or receive or agree to make, give or receive a payment or reward for or in consideration of-
(i) entering into a prescribed contract; or
(ii) a person agreeing to act as a surrogate parent."
27. Although the legislation does not overtly distinguish between altruistic and commercial surrogacy in the same manner as other jurisdictions such as Victoria and the Australian Capital Territory, it appears that such a distinction will be read into the legislation by the Queensland courts. Queensland is the only Australian jurisdiction which has witnessed a judgment on surrogate motherhood. In this judgment, R v White[64] heard before Black SM in Mossman Magistrate's court, the defendant, White, a medical practitioner, was charged with aiding or abetting a party to enter a surrogacy arrangement.[65] The p enalty for such an offence is a fine, imprisonment or both. The magistrate in sentencing the defendant stated:
28. "there is not the slightest suggestion that you sought to gain or did gain personal enrichment from these actions. There could be nothing, in my view, so abhorrent as trading in babies. Some might say not even abortion but where babies become chattels to be sold at will. But I am satisfied that that was not your motivation. You seem to have acted very much with the interests of another person....at heart. However, the law prohibits your activities...It is my view clearly that a custodial sentence is not warranted in the particular circumstances."[66]
29. The judgment appears to distinguish between the concepts of commercial surrogacy and corresponding ideas of profit or gain and altruistic surrogacy and notions of kindness and thoughtfulness viewing the former as worthy of more severe punishment than the latter. The distinction is interesting as it assumes that personal enrichment on the part of the defendant centres upon monetary reward and ignores any other motivations which may give personal gratification. For instance, in this case evidence was led not only illustrating the defendant's desire to assist another but also that the defendant "was a person vehemently opposed to abortion"[67] who would presumably gain personal gratification from seeing pregnant women agree to become surrogate mothers for infertile women rather than have their fetus aborted.
30. In Tasmania both altruistic and commercial surrogacy contracts are void and unenforceable.[68] The Surrogacy Contracts Act 1993 (Tas) ("the Act") provides that "a person must not make or receive, or agree to make or receive, a payment or reward in relation to a surrogacy contract".[69] To do so attracts a fine or imprisonment. There is no corresponding provision for altruistic contracts.[70]
31. In Tasmania, as in the other jurisdictions, successful completion of an altruistic surrogacy agreement is made difficult through the effect of legislation which was not drafted with surrogate motherhood in mind. For example, adoption legislation in Tasmania prohibits a person from entering into a private adoption arrangement and a woman who gives birth to a child as a result of the carrying out of an artificial conception procedure is deemed to be the mother of the child, whether or not the child is biologically hers.[71] In Tasmania the Act:[72]
32. "...makes no distinction between commercial or non-commercial surrogacy contracts with one important exception: the [Act] does not penalise those parties who enter into a non-commercial surrogacy. The Government believes that the arguments against surrogacy that I previously stated apply equally to non-commercial or so-called 'altruistic surrogacy'. However the Government, in line with the recommendations of a joint meeting of Commonwealth and State ministers responsible for Health and Social Welfare, does not believe that the legislation should penalise parties to this type of surrogacy arrangement...The Government is confident that this bill represents an appropriate response to a practice that has the potential to threaten the concept of marriag e and family and the role of women in society."
33. The above statement by the Minister for Community Services, the Honourable Mr Roger Groom in his Second Reading Speech points to the enigma of the current Australian aurrogate motherhood legislation. If the same objections apply to commercial surrogacy as to altruistic surrogacy, why treat the practices differently?
34. It could be argued that this dichotomy in the legislative treatment of surrogacy is a response to the demands of society.[73] Thus, commercial surrogacy is penalised more severely than altruistic surrogacy as it is the payment of a fee to the surrogate mother which has raised the most objections.[74] However, such an assertion is difficult to maintain given opinion polls which have been carried out on the practice of surrogate motherhood. For example, in May 1987, the NSW Law Reform Commission conducted an opinion poll[75] which found that 51% of Australians were not opposed to surrogate motherhood. Of these 51%, 16% expressly approved of it, 33% of all respondents objected to surrogate motherhood for married couples, a small proportion did not have an opinion and 13% said that they would need to know more. Thus, over half of the survey population could not find fault with surrogacy. Further, the same poll showed that there:
35. "is clear support among Australians for providing some form of payment to the surrogate mother. Forty percent considered that the surrogate mother should be paid for her medical expenses plus a fee agreed with the couple. A further 34% considered she should receive payment for medical expenses only. Only 17% thought that there should be no payment at all."[76]
36. Given that community consensus does not reflect current legislative directives over how to deal with altruistic and commercial surrogacy, the question remains as to why a distinction between the practices has been enshrined in legislation. The extracts from parliamentary debates in the Australian Capital Territory, South Australia and Tasmania which appear above provide the following explanations as to why the legislation distinguishes between the practices:
37. The first explanation, while possibly containing an element of truth, is a little spurious. Such an argument can be put forward to prevent parliament legislating against any form of family or reproductive behaviour which society deems to be undesirable.
38. For example, incest cannot be stopped therefore there is little point passing legislation to regulate it. Obviously, this is a position which many people would find unacceptable. Such an argument may therefore be rejected as being inadequate in its explanation of legislative failure to prohibit altruistic surrogacy in the same manner as commercial surrogacy.
39. The second and third explanations are more plausible. They pose the argument that the practices of commercial and altruistic surrogacy are firstly, fundamentally different and secondly, that altruistic surrogacy is more acceptable than commercial surrogacy.
40. At first blush, this argument that the legislative dichotomy of the practice of surrogacy is a result of an existing distinction between the practices of commercial and altruistic surrogacy seems reasonable. This is because in the context of reproduction and family, commercial surrogacy raises 'negative' images of arms length commercial deals and exploitation while altruistic surrogacy infers 'positive' attributes such as love, self-sacrifice and intimacy. Arguably however, on a deeper analysis, the practices are not fundamentally different and as the Honourable Mr Groom stated in his Second Reading Speech and as the following analysis illustrates, the objections to the practice of commercial surrogacy apply equally to altruistic surrogacy.[77]
41. This argument, which objects to the practice of surrogacy, applies to both commercial and altruistic surrogacy. It argues that it is impossible for a woman to give consent to the procedure of surrogate motherhood because a woman cannot know more than nine months before a child is even conceived as to how her feelings will be towards the child and towards relinquishing it upon birth.[78] As the preceding analysis has shown, the legislation in each jurisdiction implicitly acknowledges this point by rendering all agreements void and unenforceable, meaning that the commissioning parents to either a commercial or an altruistic surrogacy agreement cannot force a surrogate mother to relinquish her child.
42. This objection applies to both altruistic and commercial surrogacy. It centres on the view that surrogacy is unnatural and therefore should not be condoned.[79] Perhaps the best example of this type of argument is provided by the Vatican - which has condemned surrogacy and all other non-conjugal reproductive arrangements as sinful.[80] This has been the consistent view of the Roman Catholic Church since the nineteenth century, when new technologies of artificial procreation were first experimentally applied to humans.[81] The Church states that its position is not a policy decision, nor a precept based on outdated religious motives; rather, it argues its position is a necessary defence of human values. These values require that any activity separating sex from procreation be excluded as it is morally wrong. This stance implies that the sanctity of the traditional family unit will be threatened if a third party, such as a surrogate mother, plays any role in donating or gestating a child.[82]
43. This objection also applies to both commercial and altruistic surrogacy. It is based on the assertion that reproductive technology is creating three types of "mothers":[83]
44. In essence this objection argues that the splitting of the construct of motherhood into three roles may lead to the potential erosion of the family structure.[85] It suggests that the inherent destruction of a family takes place due to the surrogate mother's preconceived intent to abandon the child to the social mother and questions whether this end of furthering one family justifies the means of destroying another. [86]
45. At first blush, this objection seems to relate only to commercial surrogacy.[87] It suggests that the payment of a fee to the surrogate mother injects an element of commercialisation and potential exploitation into a sacred event: the birth of a child.[88] However, a further breakdown of this objection demonstrates that arguments as to commodification also apply to altruistic surrogacy arrangements.
46. An objection often raised with respect to the commodification of the child, and therefore to commercial surrogacy in particular, is that the introduction of a market mechanism for acquiring a child fosters an expectation or demand for product quality. The commissioning couple, paying large sums of money to obtain a child, may be reluctant to accept an imperfect child.
47. An example of this is the 1983 'Baby Doe' case. Mrs Judy Stiver, a Michigan housewife, agreed to bear a child for Alexander Malahoff and his wife for a fee of $10,000. All went well until the child was born, when it was discovered that he suffered from microcephaly - a condition whereby the child has an abnormally small head and often turns out to be mentally retarded. Mr Malahoff no longer wanted the child, and told the hospital to withhold treatment - Mrs Stiver also rejected the child, saying that there had been no maternal bonding. The hospital went to court and won permission to care for the child and the Michigan Department of Social Services fostered the child out.[89]
48. This was not the end of the matter, as Malahoff asserted that he could not be the father. Mr Malahoff and Mr Stiver then underwent blood tests to establish paternity before appearing on the Phil Donahue television talk show to discuss the situation - where it was dramatically revealed that Mr Stiver was in fact the father. It emerged that while Mrs Stiver was contractually obliged to abstain from intercourse for some time after insemination, she had not received any instruction about intercourse prior to insemination.[90]
49. The Stivers accepted that the child was their own. Mr Malahoff reacted by suing Stiver for not producing the child he contracted for and the Stivers countered by suing their doctor, lawyer and psychiatrist for not advising them properly about marital sex. They also sued Malahoff for invading their privacy by making the matter public and alleged that the child's illness was caused by a virus transmitted in Malahoff's sperm.[91]
50. As Singer and Wells[92] point out, many people would consider that such an episode provides sufficient grounds for prohibiting commercial surrogacy. These grounds are based firstly, upon the assumption that children will come to be treated as consumer goods and secondly, that surrogacy arrangements will increase the risk that biological parents will consider it acceptable to abandon less than perfect infants after they are born.[93] Krimmel[94] suggests that such a rejection is more likely to occur because the commissioning parents contract not for any child; but a certain type of child - one which is value for money.
51. At issue is the question of whether the parties to a commercial surrogacy contract are more likely to reject an impaired child than parties to an altruistic surrogacy contract. Arguably, this objection as to product quality applies to both commercial and altruistic surrogacy. Indeed, it has been suggested that in altruistic surrogacy and commercial surrogacy, the child is "treated as a commodity to be bargained, whether for money or love or loyalty to another".[95] Further, there is nothing in a commercial surrogacy arrangement which increases the possibility of rejecting an impaired child. In other words, it is the impaired condition and not the circumstances of the conception such as whether the child was a product of a commercial or an altruistic surrogacy arrangement which raises problems. Indeed, in both an altruistic and a commercial surrogacy agreement there is an increased risk that the commissioning parents will reject a disabled child. This is because disputes may arise concerning genetic defects on the part of the surrogate mother or allegations that the surrogate mother failed to take adequate prenatal care.[96] Such arguments are separate issues from the payment of a fee.
52. The next objection is that surrogate motherhood may lead to an exercise in positive eugenics. This suggests that the market mechanism which exists in commercial surrogacy will lead to surrogates being selected for the positive attributes they offer, that "tall surrogates with classic profiles and straight teeth might command higher prices for their goods than might short, swarthy surrogates with crooked noses and overbites".[97] Kowall[98] points to the "Surrogate Mother Spring Directory" produced by the Bioethics Foundation Inc. where potential surrogates offer photos, tell their height and weight, IQ,[99] college grade point average and language skills. Noel Keane, in his book The Surrogate Mother,[100] gives an example of "Joseph" who wanted to choose the sex of his child by using a surrogate mother and a sperm splitting procedure.[101]
53. However, such an argument may apply equally to altruistic surrogacy. An infertile couple may apply the same principles when no payment is involved to a surrogate mother. Terese MacFadden, a surrogate mother who was unable to relinquish her child, talks about the infertile couple she desired to help advertising for a "surrogate mother who was attractive, intelligent and who had at least one child to prove he r fertility."[102] Indeed, it has also been argued that the issue of positive eugenics, no matter how alarming,[103] is separate to that of surrogate motherhood. After all, the decision to marry a particular person may be based on similar preferences as to physical characteristics. Also, it is no less likely that a fertile married couple or parties to an altruistic surrogacy arrangement would employ a sperm splitting procedure (without a surrogate) to predetermine the sex of their child.[104]
54. This objection is that rather than focusing on the needs of the child, the surrogacy contract exists primarily to satisfy the psychic and financial needs of adult parties.[105] The surrogate mother is thus viewed as desiring to earn a fee, the infertile The next objection is that surrogate motherhood may lead to an exercise in positive eugenics. This suggests that the market mechanism which exists in commercial surrogacy will lead to surrogates being selected for the positive attributes they offer, the couple as wanting a child for their own ends.
55. Arguably, this objection applies to altruistic as well as commercial surrogacy. One of the few empirical studies to be carried out on motivations of surrogate mothers found that the reasons why women undertake to be surrogate mothers are complex. The findings disproved that surrogate mothers are desperate women who are only after money. Parker presents data on 125 women who applied to be surrogate mothers. The findings were that of the 89% of women who said a fee was a necessary condition, it was never a totally sufficient reason for being a surrogate mother - it was accompanied by the complementary factors of
56. For example, 35%[106] of applicants who had had a previous abortion or who had given up a child to adoption wanted to become surrogates in order to resolve their guilty feelings or deal with their unresolved loss by going through the process of losing a child again.[107] Thus some candidates for surrogate motherhood seem not only to be motivated by very real financial need but also to be influenced by traditional role expectations about the importance of pregnancy and motherhood in women's lives.[108]
57. This objection is based on the premise that the payment of a fee to the surrogate mother constitutes baby-selling.[109] The Waller Report[110] condemned such arrangements as "agreements for the sale and purchase of a child ...... the buying and selling of children has been condemned and proscribed for generations. It should not be allowed to reappear".
58. Such an argument is inapplicable to altruistic surrogacy, but has also been rejected by the proponents of surrogate motherhood as applying to commercial surrogacy. The reasons for this position were succinctly put by Judge Sorkow in Baby M.[111] Judge Sorkow reasoned that if a biological father paid the surrogate for her "willingness to be impregnated and carry his child to term. At birth the father does not purchase the child. It is his own biological genetically related child. He cannot purchase what is already his."[112] The judge characterised the contract as a bargain for "totally personal service".[113]
59. Judge Sorkow's reasoning embodies two arguments that proponents of surrogate motherhood put forward against surrogacy as baby-selling. These are firstly, that a surrogate arrangement is a pre-conception contract. This means that the child has always been intended to be in the custody of the commissioning couple. Consequently, it cannot be a baby-selling contract, as in such a contract a mother who would ordinarily keep a child is induced by money to relinquish custody. Secondly, as the commissioning father makes a genetic contribution to the child, he is a natural parent. It is therefore argued that a natural parent cannot purchase a right in the thing in which he already holds an interest - parenthood.[114] Further, payments made to the surrogate mother are viewed, by proponents of surrogacy, as compensation for services rendered and not as a fee for selling the baby.[115]
60. However, even if the objection that commercial surrogacy constitutes baby selling is accepted as legitimate, it can be argued that this objection also applies to altruistic surrogacy. This is because, in surrogate motherhood a child is conceived to be given away. Thus, for whatever reason the child is created - for love or for money - ultimately the child is treated as a commodity to be transferred to someone else.
61. A further objection to commercial surrogacy is the psychological effects the surrogacy arrangement may have on the child.[116] For example, the child may be affected by learning that it's gestating mother conceived and carried it with the deliberate intention of giving it up to someone else.[117] Other concerns include the emotional damage which may result from separation from the carrying and birth mother just after birth, what to put on the birth certificate, telling the child of its origins - and the fact that the child was carried for a fee in the case of commercial surrogacy. Most of the psychological risks to the child stem from the separation of genetic and gestational parenthood from social parenting and would therefore seem to apply equally to commercial and altruistic surrogate motherhood.
62. This objection is often assumed to apply solely to commercial surrogacy. It focuses upon the particular services provided by the surrogate mother and maintains that surrogacy fosters a "commodification" of parenthood.[118] That is, through creating a market for gestational and genetic services, surrogate motherhood treats procreation as a tradeable commodity. The fear is that reproduction which involves technological assistance, money, arms-length arrangements between strangers, and transfers of reproductive services results in commodification and the devaluation of parenthood.[119] However, as was the case with objections based upon the commodification of children, a closer examination of this objection reveals arguments equally applicable to both commercial and altruistic surrogacy arrangements.
63. In Surrogate Parenting Associates v Cth ex rel Armstrong[120] the dissent of Wintersheimer J noted the possible exploitation of "financially needy women as a public policy consideration that the court should have considered". This dissent is based on the fear that upper and middle class couples offering money to lower income surrogates will exploit their reproductive capabilities and depreciate their worth as human beings.[121] Perhaps the more alarming feature of this argument is the prediction made by John Stehura, President of the Bioethics Foundation Inc., that commissioning couples will be able to recruit women in Third World countries at a fraction of the going rate.[122]
64. Arguably, the same objections can be applied to altruistic surrogacy. Within a family situation for example the probability is that those with less power among the family members may be the ones pressurised towards altruism.[123] Stainsby gives the example of Alejandra Munoz, a poor illiterate Mexican woman, who was brought illegally to the US on the understanding that when she became pregnant for her infertile cousin the embryo would be flushed out and transferred to this cousin. On threatening to have an abortion when told she was obliged to continue the pregnancy, he r relatives kept her under house confinement, threatening to expose her as an illegal alien.[124]
65. Additionally, it has been argued that the payment of a large fee makes it less exploitative and the most oppressive contracts are the low paying ones.[125] If this argument is accepted, it may follow that the most oppressive results of all is to allow surrogacy but prohibit the payment of a fee. This is due to the argument that such a result will fit our tradition of non-compensation for women's work.[126]
66. Support for this argument can be derived from the decision of the Supreme Court in Baby M. The court stated that surrogacy was "potentially degrading to women".[127] The court went on to hold that surrogacy arrangements would be acceptable only if they did not involve the payment of a fee - in other words altruistic surrogacy was seen as acceptable.
67. Critics of this decision, such as Shultz[128] find the court's decision disturbing. They point out that the court stated that the practice of surrogacy was objectionable since it ignores fundamental factors such as the fitness of the commissioning couple and the best interests of the child. Yet the court held that it would not invalidate the practice if the surrogate was not paid.[129] While the court may have believed that eliminating the payment of a fee would end surrogacy,[130] it did not explicitly state this. It would thus seem that the court genuinely believed that altruistic surrogacy is acceptable, that the bearing of a child for another is not problematic and that payment is the real concern, rather than the range of other matters which were raised. Thus, Shultz states that the removal of the court's objections to the practice itself, "smacks all too familiarly of the notion that while men get paid for their efforts, skills and services [sperm are among the things for which men get paid] women, being women, should do their women-things out of purity of heart and sentiment".[131]
68. It is also argued that the singling out of sexual and reproductive capacities as unacceptable commercial services may reinforce stereotypes that define women primarily by those capacities.[132] This argument demands that surrogacy be evaluated in the wider context of women's political inequality. In this context, Radin[133] has suggested that whether surrogacy is commercial or altruistic may be an ironic self deception. That is, surrogates may feel they are fulfilling their womanhood by producing a baby for someone else, although they may be just reinforcing oppressive gender roles. Radin argues that such a result may also be applied to the infertile woman who may believe that it is her duty to raise her partner's genetic offspring instead of adopting or having any children at all.[134] Such women may have conflicts with their partners that they cannot acknowledge or a kind of false consciousness or guilt about being unable to bear the genetic child her husband desires.
69. This objection applies to both altruistic and commercial surrogacy.[135] It maintains that surrogacy arrangements treat the surrogate mother as an emotionless vessel - a breeding machine and less than human.[136]
70. The real concern lies with the psychological harm which relinquishment of the child may cause to the surrogate mother.[137] It has been suggested that a mother develops not only physical but also strong emotional ties to the child she carries (referred to as "bonding") - separation from the child thus causes psychological harm and emotional trauma to both mother and child. Indeed, in a comprehensive survey of women who had given up their children for adoption, the majority felt an overwhelming sense of loss for periods of up to 30 years.[138] This has been said to be analogous to the outcome of surrogacy.[139]
71. This objection centres on the possible emotional exploitation of the surrogate mother. [140] It suggests that a form of exploitation arises when one party to the transaction is orientated toward the exchange of "gift" values, while the other party operates in accordance with the norms of the market exchange of commodities.[141] This objection applies to both commercial and altruistic surrogacy.
72. In a surrogacy agreement the surrogate mother gives the ultimate gift. Initially, she gives the gift of her child; she then gives the gift of the status of mother to another woman and finally, she gives the couple the status of family.[142] As Sappideen has pointed out, gift relationships traditionally give rise to reciprocal obligations[143] where three sets of norms operate: obligations to give, to receive and to repay in equal value. In the area of kidney donations these norms have operated with adverse consequences. Firstly, in relation to the obligation to give, subtle pressures may be brought on a family member to donate his or her kidney; secondly a dying recipient was not absolutely free to reject the gift as refusal implied rejection of the donor and thirdly, the donee may be left with a sense of a continuing obligation to the donor and the donor tends to exhibit a proprietary interest in the conduct and the life of the recipient.[144]
73. Further, the tacit acceptance of altruistic surrogacy is based on the assumption that families and friends base decisions such as bearing a child for a family member on grounds where all parties are equal and with no pressure applying from other family members. Arguably this is not the case as a woman can be physically, financially, or more probably, emotionally coerced to assist an infertile sister or friend. Indeed, commentators suggest that such emotional pressure is more likely to occur in an altruistic arrangement than a commercial one[145] whereas:
74. "[p]reviously attention has been focused on the economic pressures brought to bear in commercially based surrogacy; more recently the potential for the equally forceful emotional pressures brought to bear on women in so-called altruistic intra-familial surrogacy has been revealed."[146]
75. Elizabeth Kane, America's first surrogate, who has since identified her own altruism as stemming from "low self esteem", once commented that Maggie Kirkman (a commissioning mother) was more concerned about her unborn baby than she was about her surrogate sister when the latter began to haemorrhage.[147]
76. Further, it has been suggested that altruistic surrogacy is more exploitative than commercial surrogacy as if the surrogate mother has agreed to bear the child, family dynamics may make it impossible for her to keep the child if she so desires - the loss of her family as retribution may be too much for her to give up.[148] In other words it may be easier for a commercial surrogate mother to cancel the contract and return any monies received than it i s for a surrogate mother to withhold the child from a relative. As Stainsby has explained:
77. "The repercussions [of refusing to relinquish a child] would be particularly painful in an altruistic surrogacy situation. It is here that a decision to keep or relinquish the child can cut deep into a surrogate woman's most intimate family ties and support systems. (If the child is disabled in any way neither the surrogate nor the commissioning parents may wish to keep it). In a commercial surrogacy situation a surrogate can still have her family supports. In an altruistic surrogacy one's kith and kin can become one's accusers."[149]
78. From the above analysis, it appears that there are serious and disturbing objections to the practice of surrogacy which may apply equally to both commercial and altruistic surrogacy arrangements. Given that this is the case, it becomes difficult to explain why the majority of jurisdictions have enacted legislation which treats commercial surrogacy as a criminal offence while leaving altruistic surrogacy unregulated. While such legislative intervention affords the individuals concerned a measure of protection from possible harm, the underlying assumption seems to be that firstly, there are two categories of surrogate motherhood and that secondly, there is a particular category of surrogate motherhood that as a matter of policy, is better for the individuals involved, or for society or both.[150] Therefore, commercial surrogacy is treated more punitively than altruistic surrogacy by legislatures as it is considered a less desirable form of behaviour. Conversely, altruistic surrogacy is left unregulated as it is perceived as more palatable to society, as posing less danger to the parties involved in the arrangement and as conforming more closely to the convictions we hold surrounding reproduction.
79. Reproduction, parenthood and family are matters about which most people hold deep convictions - convictions which are often based on a certain theological or moral persuasion.[151] Traditionally, these convictions reflect a socially constructed paradigm of a 'nuclear family' where reproduction takes place within a permanent relationship between one man and one woman to the exclusion of all others. This relationship has traditionally been considered to be mysterious, sacred and personal. Consequently, there is ambivalence about or discomfort with methods of human reproduction which depart from this traditional and 'natural' process of creating human life. One such method of human reproduction which directly challenges traditional convictions concerning reproduction and the formation of a family is surrogate motherhood. Surrogate motherhood, which has at its essence the deliberate creation of a child for the purpose of surrendering the child upon birth to the care of another represents a "striking departure from our collective accumulative experience"[152] and thus contravenes many of the normative assumptions such as love, parenthood and nature which surround the traditional paradigm of family formation. Given that surrogate motherhood departs from reproductive mores it is not surprising that current legislation displays a distinct distaste for the practice of surrogacy and of commercial surrogacy in particular.
80. This distinct legislative distaste for the practice of surrogacy reflects a pattern of the state rejecting forms of reproduction which depart from the traditional nuclear family and reinforcing traditional norms regarding reproduction. Such state intervention to control the parameters of human procreation is further illustrated through intervention by the state in another form of artificial reproduction - IVF.[153] In the three Australian jurisdictions where legislation has been enacted governing access to IVF programs, the practice has been assimilated as closely as possible to the conventional norm of the family. In South Australia the Reproductive Technology Act 1988 limits access to married infertile couples or de facto heterosexual couples who have lived together for five years or those whose children are likely to have a genetic disorder. In Victoria the Infertility (Medical Procedures) Act 1984 allows artificial fertilisation procedures only to be carried out on a married woman who is unlikely to become pregnant or whose child may inherit an 'undesirable' genetic trait or de facto heterosexual couples if they were in a relationship before the section of the Act commenced. In Western Australia the Human Reproductive Technology Act 1991 allows only infertile married couples or heterosexual de facto couples who have lived together for five years or who are likely to transmit a genetic defect to be treated with IVF. Thus the outcome is that persons or families who do not come within the traditional parameters of the family, such as lesbian couples, are excluded from creating a family through these means.
81. One consequence of the law's defining of the parameters with regard to IVF is that the practice is recognised and accepted as legitimate by the state.[154] A similar implication exists in the legislation which exists with respect to altruistic surrogacy. That is, the refusal to explicitly ban altruistic surrogacy in legislation implies a tacit acceptance and acknowledgment of its practice.[155] Therefore, through legislative inaction altruistic surrogacy, an unconventional form of procreation, has been implicitly accepted as fitting into traditional structures of women's role in society, reproduction and family.
82. The implied legislative acceptance of surrogacy without payment reinforces dominant values and social aims regarding the family. In essence these values are that it is inappropriate to mix love and intimacy with cash and commerce but that it is appropriate and acceptable to undertake actions out of generosity and feeling. Cash and commerce, which are perceived as being the domain of commercial surrogacy, involve self interest; human reproduction is seen as principally a matter of unselfish and noble behaviour.[156] Thus, altruistic surrogacy, which does not involve money, fits society's perception of human reproduction as a noble and selfless act.
83. The legislative distinction of surrogate motherhood falling into two neat categories of altruistic and commercial should be viewed with caution. While it is appealing to enact legislation which adheres to traditional notions of love and self sacrifice in relation to child bearing, in reality the creation of a legislative dichotomy of the practice of surrogacy is undesirable for the following reasons:
84. As surrogate motherhood has traditionally been the subject of polarised views, legislative reform to remove the dichotomy between commercial and altruistic surrogacy may not meet community consensus. Surrogacy remains a practice which is alternatively viewed as a solution to an important social problem characterised by love and self-sacrifice or as a threat to society's moral fabric embodying exploitation and commodification.[159] It appears however that regardless of which side of this debate is taken the current legislative distinction between the practices of commercial and altruistic surrogacy is, at this stage, undesirable and untenable.
1. Infertility (Medical Procedures) Act 1984 (Vic) s 30. Note that this Act will be replaced upon commencement of the remaining provisions of the Infertility Treatment Act 1995 (Vic)(commencement is set down for 27/6/97 or earlier if proclaimed). [return to text]
2. Family Relationships Act 1975 (SA) as amended by the Family Relationships Act Amendment Act 1988 (SA). [return to text]
3. Surrogate Parenthood Act 1988 (Qld). [return to text]
4. Surrogacy Contracts Act 1993 (Tas). [return to text]
5. Substitute Parent Agreements Act 1994 (ACT) and the Substitute Parent Agreements (Consequential Amendments) Act 1994 (ACT). [return to text]
6. 'Kennett Drops Surrogacy Plan' The Australian, April 27, 1995; M Carter, 'Victoria - The Surrogacy State' (1993) 36 Health Issues 12; W Weeks, 'Will Victoria also 'Proceed with Care' in relation to Reproductive Technology' (1994) 38 Health Issues 35. The proposal was to amend the Infertility (Medical Procedures) Act 1984 to allow fertile women to participate in the IVF program as part of 'voluntary' surrogacy arrangements. At the time of writing, the proposal had lapsed. [return to text]
7. Substitute Parent Agreements Act 1994 (ACT) s 8 and the Substitute Parent Agreements (Consequential Amendments) Act 1994 (ACT). [return to text]
8. The development of fertility clinics began in Sydney in 1938, see C W Lloyd, 'The Development of Infertility Treatment in Australia' (1991) 31(3) Australian and New Zealand Journal of Obstetrics and Gynaecology 254. As to the development of infertility treatments more generally see N Pfeffer, The Stork and the Syringe: A Political History of Reproductive Medicine, Polity Press, London, 1993. [return to text]
9. See In the Matter of Baby M (1988) 537 A 2d 1227, where Mrs Stern the commissioning mother was suffering from multiple sclerosis. [return to text]
10. L Haberfield, Surrogate Motherhood in Victoria: What Now for Altruistic Surrogacy? (1988) Unpublished Paper, Monash University at 37. [return to text]
11. P Singer & D Wells, The Reproduction Revolution: New Ways of Making Babies Oxford University Press, London, 1984 at 113. [return to text]
12. There are further theoretical possibilities of fertilisation such as Gamete Intra Fallopian Transfer (GIFT) but there are no records of such procedures being used in surrogacy arrangements. [return to text]
13. J Leeton, 'The Current Status of IVF Surrogacy in Australia' (1991) 31(3) Australian & New Zealand Journal of Obstetrics and Gynaecology 260. Surrogacy can be achieved with no more technology than a turkey baster see J Areen, 'Baby M Reconsidered' (1 988) 76 Georgetown Law Journal 5 at 1741. [return to text]
14. In the last 20 years in the United States over 1 000 births using this method have been reported see J Leeton, Ibid at 260. [return to text]
15. L Haberfield, op cit, n 10 at 37. [return to text]
16. This was the birth of Alice Kirkman. [return to text]
17. J Leeton, op cit, n 13 at 261. [return to text]
18. J Leeton & K Dawson 'A Case of Attempted IVF Surrogacy in Victoria: Breaking the Law or Breaking the Deadlock?' (1994) 34(5) Australian & New Zealand Journal of Obstretics & Gynaecology 586. [return to text]
19. Surrogate motherhood is often grouped with other forms of recent developments in reproductive technology in a category called "artificial conception". The practice of surrogacy is however, neither a new development in human reproduction nor is it necessarily technological. Possibly the first recorded fertility test and act of surrogacy occurred in 1913 BC when Sarai sent Hagar, her handmaid to bear a child for Abraham see L W Cox, 'The Development of Infertility Treatment in Australia' (1991) 31(3) Australian & New Zealand Journal of Obstretics and Gynaecology 254 and Genesis 16:2. [return to text]
20. M Bracher & G Santow, 'Fertility Desires and Fertility Outcomes' (1991) Journal of the Australian Population Association 1 at 33. It has been suggested that as many as one couple in six are involuntarily childless, figures which represent a threefold increase in infertility in the last 20 years D Wallis, 'The New Origins of Life' Time September 10, 1984 at 46. [return to text]
21. D R C Chalmers, 'No Primrose Path' (1989) 7 Medicine and the Law 1 at 2. In Australia the number of children available for adoption dropped from 9 798 in 1971 - 71 to 3 072 in 1982-83. In NSW the number of placements of adopted children in the financ ial years: 1986-87 was 112; 1987-88 was 86; 1988-89 was 89; 1989-90 was 63; 1990-91 was 54; 1991-92 was 54; 1992-93 was 48; 1993-94 was 44. This is due largely to single parent families becoming the norm and unmarried mothers not placing their children up for adoption. [return to text]
22. M A Field, Surrogate Motherhood, Harvard University Press, Cambridge Mass., 1988. For an example of a 'typical' surrogacy contract see K M Brophy, 'A Surrogate Mother Contract to Bear a Child' (1981-82) 20 Journal of Family Law at 263 - 291. [return to text]
23. The term "infertile couples" which is often used in the literature in this area seems to be restricted to married heterosexual couples. [return to text]
24. M Charlesworth cited in ACT Attorney General's Department Discussion Paper Surrogacy Agreements in the ACT, Canberra, 1993 at 5. [return to text]
25. J Wright, 'Wombs for Rent' (1990) 116 Australian Left Review 12. [return to text]
26. See for example J Scutt, 'Whose Surrogate? "Surrogacy" Ethics and the Law' (1991) Surrogacy - In Whose Interest? Proceedings of National Conference on Surrogacy, Mission of St James and St John, M Meggitt (Ed) at 122. [return to text]
27. National Bioethics Consultative Committee, Surrogacy Report 1, 1990, 8. [return to text]
28. E S Anderson , 'Is Women's Labor A Commodity' (1990) 19(1) Philosophy & Public Affairs 86. [return to text]
29. Family Law Council, Creating Children: A Uniform Approach to the Law and Practice of Reproductive Technology in Australia AGPS Canberra 1985; Australian Health Ministers Advisory Council Reproductive Technology Working Group report considered by the Joint Meeting of The Australian Health Minister's Conference and The Council of Social Welfare Ministers, 1991; National Bioethics Consultative Committee, Surrogacy Report 1 & 2, 1990; NSW Law Reform Commission Surrogate Motherhood, Report No. 60, NSW Gove rnment Printer, 1988; Victorian Committee to consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilisation, Report on the Disposition of Embryos Produced by In Vitro Fertilisation, Victorian Government Printer, 1984; Report of the Special Committee Appointed by the Queensland Government to Inquire into the Laws Relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters, Queensland Government Printer, 1984; Final Report: Committee to Investigate Artificial Conception and Related Matters, Tasmanian Government Printer, 1985; Report of the Committee Appointed by the Western Australian Government to Inquire into the Social, Legal and Ethical Issues Relating to In Vitro Fertilization and its Supervision, 1986; Report of the Select Committee of the Legislative Council on Artificial Insemination by Donor, In Vitro Fertilisation and Embryo Transfer Procedures and Related Matters in South Australia, South Australian Government Printer, 1987; the ACT Attorney-General's Department, Discussion Paper: Surrogacy Agreements in the ACT, 1993 [return to text]
30. The National Bioethics Consultative Committee recommended that surrogacy be regulated by the State. [return to text]
31. K Andrews Surrogacy, 'Public Policy and the Law' (1993) 11(2) St Vincent's Bioethics Centre Newsletter 1 at 2. [return to text]
32. Infertility (Medical Procedures) Act 1984 (Vic) s 30(2) Family Relationships Act 1975 (SA) s 10(h)(c;) Surrogate Parenthood Act 1988 (Qld) s 3(1); Surrogacy Contracts Act 1993 (Tas) s 6; Substitute Parent Agreements Act 1993 (ACT) s 7. [return to text]
33. Infertility (Medical Procedures) Act 1984 (Vic) s 30(3); Family Relationships Act 1975 (SA) ss 10(g)(1), 10(g)(2); Surrogate Parenthood Act 1988 (Qld) s 4(1); Surrogacy Contracts Act 1993 (Tas) s 7; Substitute Parent Agreements Act 1993 (ACT) s 9. [return to text]
34. Infertility (Medical Procedures) Act 1984 (Vic) s 30(1); Family Relationships Act 1975 (SA) s 10(f); Surrogate Parenthood Act 1988 (Qld) s 2(2); Surrogacy Contracts Act 1993 (Tas) s 3; Substitute Parent Agreements Act 1993 (ACT) s 3. [return to text]
35. s 30(3) provides that: "a contract or agreement (whether made before or after the commencement of this section) under which a woman agrees with another person or persons to act as a surrogate mother is void". [return to text]
36. Infertility (Medical Procedures) Act 1984 (Vic) s 30(2)(b), 3 0(2)(c). [return to text]
37. This situation is not altered in the legislation which is to be proclaimed: see Infertility Treatment Act 1995 (Vic) s 59. [return to text]
38. However, IVF surrogacy procedures are currently being performed in Victoria where the proposed surrogate mother has had a tubal ligation: see J Leeton & K Dawson, op cit, n 18. [return to text]
39. L Haberfield, op cit, n 10, 37. See also the Family Law Act 1975 (CTH). [return to text]
40. Adoption Act 1984 (Vic) s 12. [return to text]
41. S Roberts, 'Warnock and Surrogate Motherhood' in I Kennedy A Grubb Medical Law: Text with M aterials, 2nd Ed, Butterworths, London, 1994 at 827. [return to text]
42. Op cit, n 29, Paragraph 4.12 at 53. [return to text]
43. Substitute Parent Agreements Act 1993 (ACT) s 3 defines "substitute parent agreement" as: "a contract, agreement, arrangement or understanding under which - (a) a person agrees to become, or to attempt to become , pregnant and that a child born as a result of the pregnancy is to be taken to be (whether by adoption, agreement or otherwise) the child of another person; or (b) a person who is pregnant agrees that a child born as a result of the pregnancy is to be ta ken to be (whether by adoption, agreement or otherwise) the child of another person." [return to text]
44. Substitute Parent Agreements Act 1993 (ACT) s 9. [return to text]
45. The penalty for such an offence is a fine, imprisonment or both: Substitute Parent Agreements Act 1993 (ACT) s 6. [return to text]
46. The Explanatory Memorandum to the Substitute Parent Agreements Bill 1994 (ACT) states that this term refers to altruistic surrogacy arrangements. [return to text]
47. See the definition of "commercial substitute parent agreement" n 42. [return to text]
48. The offence is punishable by a fine or imprisonment or both: Substitute Parent Agreements Act 1993 (ACT) s 5. Section 3 of the Act defines a "commercial substitute parent agreement" as "a substitute parent agreement under which a person agrees to mak e or give to another person a payment or reward, other than for or on account for expenses connected with - (a) a pregnancy (including any attempt to become pregnant) that is the subject of the agreement; or (b) the birth or care of a child born as a result of that pregnancy." [return to text]
49. Substitute Parent Agreements Act 1993 (ACT) s 7. [return to text]
50. The penalty for such an offence is a fine, imprisonment or both: Substitute Parent Agreements Act 1993 (ACT) s 8. [return to text]
51. Discussion on Substitute Parent Agreements Bill, ACT Legislative Assembly 11.10.94 [return to text]
52. This is because parenthood of the child is established by other legislation see for example the Birth (Equality of Status) Act 1988 (ACT), the Artificial Conception Act 1985 (ACT), the Family Law Act 1975 (CTH) and the Adoption Act 1993 (ACT). For a discussion of the effect of this legislation see the ACT Attorney-General's Department, Discussion Paper Surrogacy Agreements in the ACT 1993. [return to text]
53. As previously stated these penalties are $5000 in the case of altruistic surrogacy. Such a penalty is favourable to the cost of a surrogacy agreement in the United States which is normally $60 000 US. There have been reports of Australian couples tra velling to the US to enter such arrangements: see The Age, 11.7.90 at 4; the New Idea 1.9.90 at 7. [return to text]
54. See ACT Legislative Assembly Summary of Provisions Substitute Parent Agreement Act 1994. [return to text]
55. Substitute Parent Agreements Act 1993 (ACT) s 10. [return to text]
56. Family Relationships Act 1975 (SA) s 10f defines "surrogacy contract" as: " a contract under which - (a) a person agrees - (i) to become pregnant or seek to become pregnant; and (ii) to surrender the custody of, or rights in relation to, a child born as the result of the pregnancy; or (b) a person who is already pregnant agrees to surrender custody of, or righ ts in relation to, a child born as a result of the pregnancy." [return to text]
57. Family Relationships Act 1975 (SA) 10 f defines "procuration contract" as "a contract under which - (a) a person agrees to negotiate, arrange or obtain the benefit of a surrogacy contract on behalf of another; or (b) a person agrees to introduce prospective parties to a surrogacy contract" [return to text]
58. Family Relationships Act 1975 (SA) ss 10g(1) & 10(g)(2). [return to text]
59. This is punishable by a fine or imprisonment: Family Relationships Act 1975 (SA) ss 10(h)(a) and 10(h)(b). [return to text]
60. Parliamentary Debates (Hansard) Third Session of the 46th Parliament,16.2.1988, 2764. [return to text]
61. Surrogate Parenthood Act 1988 (Qld) s 4(1). Section 2(2) of the Surrogate Parenthood Act 1988 defines a "prescribed contract" as: "a contract, agreement or arrange ment made between two or more persons, whether formally or informally and whether or not for payment or reward, under which it is agreed - (a) that a person shall become or shall seek or attempt to become the bearer of a child and that a child delivered a s the result thereof shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons other than the person first-mentioned in this paragraph (a); or (b) that a child delivered from a person who is the bearer of any embryo, foetus or child at the time when the prescribed contract is made shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons other than the person first-mentioned in this paragraph (b)." [return to text]
62. Surrogate Parenthood Act 1988 s 3(c). [return to text]
63. Surrogate Parenthood Act 1988 s 3(1). [return to text]
64. Unreported, Magistrates Court, Qld, Criminal Jurisdiction, No 978-9 of 1993, 25.10.93. [return to text]
65. The defendant was charged with a breach of the Surrogate Parenthood Act 1988 (Q ld) s 3(c) read in conjunction with Criminal Code (Qld) s 7. [return to text]
66. R v White Magistrates Court, Mossman, Criminal Jurisdiction, 25.10.93 at 16-17. [return to text]
67. Ibid at 12. [return to text]
68. Surrogacy Contracts Act 1993 (Tas) s 7. "Surrogacy contract" is defined as: "a contract, agreement or arrangement, with or without payment or reward, under which - (a) a person agrees to become, or is already, pregnant and agrees to surrender to another person the custody or guardianship of, or rights in relation to, a child born as a result of the pregnancy; and (b) the other person agrees to accept custody or guardianship of such a child." [return to text]
69. Surrogacy Contracts Act 1993 (Tas) s 4(4). "Reward" is defined as "any benefit or other kind of property that has a monetary value" Surrogacy Contracts Act 1993 (Tas) s 3. [return to text]
70. This distinction is interesting given that the Tasmanian Committee to Investigate Artificial Conception and Related Matters (1985) concluded that "surrogate motherhood in general and commercial surrogacy arrangements in particular are unacceptable to t he Tasmanian community at the present time", 87 see also M Otlowski, "Surrogacy Contracts Act 1993" (1993) 2 Australian Health Law Bulletin, 26. [return to text]
[71] Ibid at 27.
72. Parliamentary Debates (Hansard) Parliament of Tasmania House of Assembly, 42nd Parliament, 1 1.11.92, 4840 per Mr Roger Groom, Minister for Community Services. [return to text]
73. There is a possibility that this reflects the interests of pressure groups such as the medical profession who maintain a window of opportunity for research if procedures such as IVF are in public demand. It is important to note that there is no one pre dominant view held on the issue of surrogacy see the section of this article titled "Is there a distinction between commercial and altruistic surrogacy?". The generic term "society" is used in this article to refer to the prevailing views or norms which o perate to shape social systems. [return to text]
74. These objections are based on the notion that a fee injects an element of commercialisation and potential exploitation into what is valued as a sacred event: the birth of a child, see T A Eaton 'The British Response to Surrogate Motherhood: An American Critique' (1985) 19 Law Teacher 163, 173. [return to text]
75. NSW Law Reform Commission, Artificial Conception; Surrogate Motherhood: Australian Public Opinion, May 1987, Research Report. [return to text]
76. Ibid at 19. [return to text]
77. As this section is examining objections to commercial surrogacy principles such as personal autonomy are not canvassed. There is little empirical data on the effects of surrogate motherhood arrangements, most objections to the practice are therefore theoretical and based upon anecdotal evidence. [return to text]
78. M Stainsby, 'The Surrogacy Debate Again: What about altruistic surrogacy?' (1993) 11(2) St. Vincent's Bioethics Centre Newsletter 5 at 6. [return to text]
79. Proponents of surrogacy refute this by arguing that the right to found a family is viewed as such an integral part of society that it has been enshrined by the United Nations (UN) in Article 16 Part 1 of the Universal Declaration of Human Rights see S Uniacke, 'In Vitro Fertilisation and the Right to Reproduce' (1987) 1 Bioethics 241 at 248. In accord with this, proponents of surrogacy argue that the practice of surrogate mothering is not a threat to the family, but rather promotes the family as the basic unit of society by allowing the commissioning couple to create a traditional family structure through what may be the only means available see G P Smith II, 'The Razor's Edge of Human Bonding: Artificial Fathers and Surrogate Mothers' (1983) 5 Western New England Law Review 666. Further, it is suggested that practices such as adoption, divorce and blended families frequently involve the introduction of third parties into the family unit see T A Eaton 'The British Response to Surrogate Motherhood: An American Critique' (1985) 19 Law Teacher 163 at 173. [return to text]
80. L Andrews Between Strangers, Harper & Row, New York, 1989, xiv citing the official policy statement of the Vatican Congregation for the Doctrine of the Faith, Instruction on Report for Human Life in its Origin and on the Dignity of Procreation (1987). Another example of this type of argument is that put forward by Canadian Professor David Suzuki who commented: "..... infertility is nature's way of preventing genetic errors being propagated. Societies have evolved all kinds of ways of compensating for a couple's infertility. If doctors feel they must service the desires of people when elsewhere in the world poverty, malnutrition, and parasitic diseases are taking such a terrible toll, it is a misappropriation of our limited resources" The Age, 5 July 1988, at 11. [return to text]
81. R D Lawler Moral reflections on the New Technologies: A Catholic Analysis in Embryos Ethics and Women's Rights: Exploring the New Reproductive Technologies, E H Baruch, A F D'Adamo & J Seager (eds), Harrington Park Press, New York, 1988 at 168, note 1. The first firm teaching of the Church on this matter is found in the Decree of the Holy Office of March 17, 1887, insisting that artificial insemination of women is illicit. [return to text]
82. In relation to both altruistic and commercial surrogacy these claims are, to an extent, unanswerable as they involve subjective matters of faith or belief more than reason. It has been argued by Shultz, that to adopt an objection based on "unnaturalness" per se would lead to the eradication of many medical procedures such as artificial insemination which are already socially and legally accepted for use in conventional marriage. M M Shultz, 'Reproductive Technology and Intent Based Parenthood: An Opportunity for Gender Neutrality' (1990) 2 Wisconsin Law Review 374. Artificial insemination is socially and legally accepted in Australia with 5000-6000 inseminations carried out each year, M Charlesworth, 'Reasons For and Against Surrogate Motherhood' in Surrogacy - In whose Interest?, Proceedings of the National Conference, February 1991, Mission of St James and St John at 58. [return to text]
83. G Corea, The Mother Machine The Women's Press, London, 1988 at 90. [return to text]
84. This type of mother occurs in IVF surrogacy. As the US case of Johnson v Calvert No. X63-31-90 illustrates however, it is this form of surrogate motherhood which raises particular problems with the definition of mother as to whether the mother is the woman who gives birth or the woman who is genetically related to the baby. On this point also see G McBride, 'US Battles Over Surrogacy' (1990) 301 The British Medical Journal 1062 . [85] On the other hand it can be argued that this objection is based upon subjective value judgements as to what the role of a mother and the family unit entails. It assumes that there is a single, incontrovertible conception of family as a biological unit, see R Macklin, 'Artificial Means of Reproduction and Our Understanding of the Family' (1991) 21 Hasting Center Report 1 at 5. [return to text]
86. B J Carney, 'Where Do the Children Go? - Surrogate Mother Contracts and the Best Interests of the Child' (1988) XXII Suffolk University Law Review 1201. [return to text]
87. In accord with family law, the welfare of the child has been adopted by many commentators, as the most important consideration in surrogacy agreements. [return to text]
88. T A Eaton, op cit, n 77 at 173. [return to text]
89. D DeMarco, 'The Conflict Between Reason and Will in the Legislation of Surrogate Motherhood' (1987) 32 The American Journal of Jurisprudence at 23. [return to text]
90. L Tager, 'Surrogate Motherhood, Legal Dilemma' (1986) 103 South African Law Journal 393. [return to text]
91. K Andrews, 'The Educative Role of the Law: Options for Regulation in Surrogacy' in Surrogacy - In Whose Interest?, Proceedings of the National Conference, 1991, Mission of St James and St John at 98. [return to text]
92. P Singer & D Wells, op cit, n 11 at 119. [return to text]
93. J Areen, op cit, n 11 at 1741. [return to text]
94. H T Krimmel 'The Case Against Surrogate Parenting' (1983) 13 Hastings Center Report 37. [return to text]
95. K Andrews, op cit, n 90 at 114. [return to text]
96. S O'Brien, 'Commercial Conceptions: A Breeding Ground For Surrogacy' (1986) 65 North Carolina Law Review at 145. [return to text]
97. Ibid at 127. [return to text]
98. 'The Commercialisation of Reproductive Technology' in The Baby Machine: Commercialisation of Motherhood, J A Scutt (Ed), McCulloch Publishing, Sydney, 1988 at 118. [return to text]
99. Many articles point to the fact that positive eugenics is practised in artificial insemination for example see a 1980 report of a sperm bank established with all donors being Nobel Prize Winners in C Sappideen, 'The Surrogate Mother - A Growing Problem' (1983) 6 UNSW Law Journal 79 at 97. [return to text]
100. N P Keane & D L Breo, New York, Everest House, 1981 at 241. [return to text]
101. Refers to the separation of X and Y chromosome bearing sperm. [return to text]
102. MacFadden, 'Surrogate motherhood - Refusing to relinquish a child' in J A Scutt (ed) The Baby Machine: Commercialisation of Motherhood. [return to text]
103. See however, E M Landes & R A Posner , 'The Economics of the Baby Shortage' (1978) 7 Journal of Legal Studies at 345 where they argue that if baby selling were legalised the implication of eugenic alteration "would be small". [return to text]
104. L Haberfield, op cit, n 10 at 13. [return to text]
105. S O'Brien, op cit, n 95 at 145. This is based on an ethical argument put forward by Immanuel Kant, who formulated the principle that one must never treat another person as a means to ones own ends, but rather as an end in him or herself. Proponents of surrogacy argue that even under conventional legal rules, children do not get a say in who their parents will be or for that matter in whether they will be born and therefore the child of a surrogacy arrangement would seem to be no more a means to an end than a child of an ordinary marriage. Proponent of surrogacy argue that the trouble and expense incurred by the commissioning couple would seem to additionally suggest that the child will be raised by parents who dearly want him or her. [return to text]
106. 26% had had a voluntary abortion, 9% had relinquished a child for adoption. [return to text]
107. PJ Parker, 'Motivation of Surrogate Mothers: Initial Findings' 140(1) (1983) American Journal of Psychiatry 118. [return to text]
108. C Overall, Ethics & Human Reproduction, Allen & Unwin 1987 at 123. [return to text]
109. P Schuck, 'Some Reflections on the Baby M Case' (1988) 76 Georgetown Law Journal 1794. [return to text]
110. Report on the Disposition of Embryos Produced by In Vitro Fertilization, op cit, n 29 at Para 4.11 & 4.6. [return to text]
111. R A Crowley, 'Developments in the Law: Surrogate Parenthood Contracts After Baby M' (1988) 24 Willamette Law Review 4 at 1060. [return to text]
112. 525 A 2d at 1157. [return to text]
113. 525 A 2d at 1160 [return to text]
114. L Haberfield, op cit, n 10 at 13. [return to text]
115. S M Recht, ' "M" is for Money: Baby M and the Surrogate Motherhood Controversy' (1988) 37 The American University Law Review 1013 at 1027. [return to text]
116. This objection extends to children who are witnesses of the process: see S Roberts, op cit, n 40. [return to text]
117. C Overall, op cit, n 106 at 111. [return to text]
118. T A Eaton, op cit, n 77. On the other hand it has been argued that there may be some virtue in commodifying reproductive capacities, suggestions have included a move towards a fully-fledged baby market where pregnant women contemplating abortion are paid a fee to carry the child to term and place it up for adoption, in this context, commodification is seen as a step towards greater efficiency in the resolution of the dual problems of abortion and infertility see E M Landes & R A Posner, op cit, n 101 at 347-8. [return to text]
119. M M Shultz, op cit, n 80 at 336. For example, Radin has warned of the "domino effect" of commodification of women's reproductive capacities, she claims that this leads to the commodification of children and ultimately to the commodification of every one, see M J Radin 'Market-Inalienability' (1987) 100 Harvard Law Review 8 at 1849. [return to text]
120. 537 A 2d 1227 (N.J. 1988). [return to text]
121. S M Recht, op cit, n 113 at 1024. It has been estimated that a payment to a surrogate mother of $10,000 calculated at an hourly rate for 24 hours a day and for 9 months comes to around $1.50 per hour, see the NBCC, op cit, n 29 at 39. Proponents of surrogate motherhood however, argue that these contentions go too far. Indeed, it is suggested that the available data contradicts the view that surrogates are members of an underclass. The demographic profile of a surrogate is as follows - the average age is 25, half the women are married and one-quarter divorced and one-quarter single. Half are Catholic and half are Protestant. Over half have high school qualifications and about 10% bachelor degrees. 40% were unemployed and the other 60% had household incomes of $6,000 to $55,000 and it has been argued that as surrogacy in the US becomes widespread, more middle class women are applying: see PJ Parker, op cit, n 105 at 117 (this was of the first 50 interviewed). [return to text]
122. A Kimbrell, 'The Case Against the Commercialization of Childbearing' (1988) 24 Willamette Law Review 1035 at 1044. [return to text]
123. M Stainsby, op cit, n 76 at 7. [return to text]
124. Ibid. [return to text]
125. M A Field, op cit, n 22 at 26. [return to text]
126. Ibid. [return to text]
127. 537 A 2d, 1234. [return to text]
128. Op cit, n 80 at 380. [return to text]
129. 537 A 2d, 1235. [return to text]
130. 537 A 2d, 1248. [return to text]
131. M M Shultz, op cit, n 80 at 380. Further, it has been suggested that this is a direct consequence of women's consignment to the private sphere; it seems money is only the currency of the public sphere, see K Mack, 'Surrogacy Reports 1 & 2: A Legal Evaluation' (1990) Surrogacy: Bioethical Dilemmas in the 1990's National Bioethics Conference, DBI Study Booklet No. 15 at 83-93. [return to text]
132. Harvard Law Review Editors 'Developments in the Law - Medical Technology and the Law' (1989-90) 103 Harvard Law Review 1550. Also, altruistic surrogacy has been viewed as exploiting all women as it builds upon societies expectations of women as altruistic. In other words, women who are "normal" are supposed to be giving, selfless and self sacrificing, even the term "altruistic" surrogacy implies that the practice is a positive and constructive one, see R Rowland, 'Surrogacy - A Feminist Perspective on Ethics' (1991) Surrogacy - In Whose Interest? Proceedings of National Conference on Surrogacy, Mission of St James and St John, M Meggitt (Ed) at 69. [return to text]
133. M J Radin, op cit, n 117 at 1930. [return to text]
134. Ibid, 1931. [return to text]
135. Proponents of surrogate motherhood would argue the situation of relinquishment in a surrogacy arrangement is much less coercive than the analogous situation of adoption. That is, in the stereotypical adoptions, a young single mother finds herself pregnant but unable to care for the child either financially or emotionally. This pregnancy thus has an immediacy which could lack informed and considered decision making. The surrogate mother does not act under a similar pressure - she had time to reflect upon the implications of the undertaking before deciding to conceive. Further, it is argued that the state frequently sanctions a mothers conscious decision to relinquish her child in divorce and adoption - such decisions are generally only scrutinised to determine whether they are voluntary and therefore in the child's best interests. [return to text]
136. S M Recht, op cit, n 113 at1022-23. [return to text]
137. The risk of trauma to a surrogate mother is appreciable if the adoption context is any indication. See the Family Law Council, op cit, n 29 at 64 citing a study by Winkler and Van Keppell on the effects of relinquishment on the mother. [return to text]
138. See generally Winkler & Van Keppel, "Relinquishing Mothers in Adoption: Their Long Term Adjustment", Australian Institute of Family Studies, Monograph 3, Melbourne, 1984. [return to text]
139. A Kimbrell, op cit, n 120 at 1043. [return to text]
140. Proponents of surrogate motherhood however, suggest that such arguments fail to acknowledge the diversity of women's interests, see D L Rhode, Justice and Gender: Sex Discrimination and the Law, Harvard University Press, Cambridge Mass, 1989 at 225. They point to the fact that women become surrogate mothers for a wide variety of reasons. Thus, they conclude that surrogacy is not always orientated towards an act of love and generosity. Indeed, women may become surrogates because they desire to experience the "perfect birth" or because they want to have the "experience of having a baby". Surrogate mothering may also be an act undertaken to master unresolved feelings associated with prior losses such as abortions and forced relinquishments through giving the gift of a live baby. Mary Beth Whitehead illustrates how the motivations behind desiring to become a surrogate mother are complex as "she was motivated to join the program in the hopes of giving the most lo ving gift to an infertile couple ....... and felt that the surrogate's fee would assist her in providing for her children's long range educational goals" see 525 A 2d 1128, 1142 (1987). [return to text]
141. E S Anderson, op cit, n 28 at 84. [return to text]
142. M Meggitt, 'The Dismantling of Motherhood: And One Woman's Story' (1991) Surrogacy - In Whose Interest? Proceedings of National Conference on Surrogacy, Mission of St James and St John, M Meggitt (Ed). [return to text]
143. C Sappideen, op cit, n 99 at 95. [return to text]
144. Ibid, 95-96. [return to text]
145. K Andrews, 'Surrogacy: New Procedures - New Problems' (1989) 7 St Vincent's Bioethics Centre Newsletter 1 at 10. [return to text]
146. R Bailey-Harris, 'Reproductive Technologies - Some Critical Perspectives' unpublished paper delivered at The First World Congress on Family Law and Children's Rights, 1993, Sydney Convention and Exhibition Centre at 63. [return to text]
147. Ibid. [return to text]
148. R Rowland, op cit, n 134 at 70. [return to text]
149. M Stainsby, op cit, n 76 at 6. [return to text]
150. M M Shultz, 'Contractual Ordering of Marriage: A New Model for State Policy' (1982) California Law Review 2 at 209. [return to text]
151. Ontario Law Reform Commission, Report on Human Artificial Reproduction and Related Matters, Vols I & II Ontario Government Printer 1985, Vol. 1 at 3. [return to text]
152. Ibid, 219 [return to text]
153. Again with practices such as artificial insemination by donor ("AID"), legislation such as the Family Law Amendment Act 1987 (Cth), Artificial Conception Act 1984 (NSW), allows only married women or women in a de facto relationship to be inseminated with the end result being that the third party donor simply "disappears" from the equation and the woman's husband becomes the legal father. [return to text]
154. M M Shultz, op cit, n 80 at 341. [return to text]
155. V L Payne, 'The Regulation of Surrogate Motherhood' (1986) 16 Family Law 178. [return to text]
156. Indeed, surrogacy has been described as: "..one of the most generous and kind acts that a woman can carry out to help others. Pregnancy carries risks of common complaints, obstetric complications, and an adverse effect on health. Pregnancy requires emotional and physical strength, tolerance and fortitude to endure for someone else. In the sense of giving and the self sacrifice it is one of the most ethical acts one human can achieve" see C Wood, 'Artificial Procreation' Unpublished Paper delivered at The First World Congress on Family Law and Children's Rights, 1993, Sydney at 1626. [return to text]
157. E S Anderson, op cit, n 28, 74. [return to text]
158. For example last year in Victoria there was a reported attempt at IVF altruistic surrogacy see J Leeton & K Dawson, op cit, n 18 at 586. [return to text]
159. C Rotherham, 'Surrogate Motherhood in New Zealand: A Survey of Existing Law and an Examination of Options for Reform' (1991) 7(3) Otago Law Review, 426. [return to text]