Women Surrogacy Assignment

Ques 1

Introduction

Insurrogacy, a woman consents to bear a child for another person or a couple. However, there is disagreement about the terminology used to describe surrogacy participants. A "surrogate mother" is the woman who delivers birth to the kid. The "intended parties", "commissioning parents" or "parents" are the other parties to the Agreement.[ Pedro Brando, and Nicols Garrido, Commercial surrogacy: an overview (2023) 44 Revista Brasileira de Ginecologia e Obstetrcia, 1141-1158.] In a commercial surrogacy agreement, the intended parents compensate the surrogate in addition to her fees for her gestational services. 'An agreement where a surrogate gets remuneration or incentive over and above the repayment of verified out-of-pocket expenditures directly linked with the surrogacy operation or pregnancy.

Globally, the commercial surrogacy market is thought to be valued roughly $2.3 billion. Although it is undetermined how many children are born annually utilizingthese arrangements, the amount of money spent on commercial surrogacy each year, which is estimated to have increased by 1,162% globally between 2009 and 2013, is evidence to the enormous growth in this form of assisted reproductive technology since its introduction in the mid-1980s.[ Sylvie Armstrong, Commercial Surrogacy: Building Families Outside of Family Law (2022) 33 Hastings Journal on Gender & Law, 3.] This essay highlights the shortcoming of the legislative framework and the harm associated with commercial surrogacy which the current legal framework fails to consider in providing the necessary protection to the children, surrogate mothers and intended parties. The essay attempts to rationalize the current perspective of commercial surrogacy in Australia by providing counterarguments against the central theme. The essay also highlights the international comparison to illustrate the best practices followed internationally.

Surrogacy legal Framework in Australia

Altruistic surrogacy has become broadly permitted in Australia due tovarious legal reform measures in the early 2000s, however,surrogacy laws differ significantly amongst areas.[ See, eg, New South Wales Parliament, Legislative Council, Standing Committee on Law and Justice: Legislation on altruistic surrogacy in NSW, Report 38 (2009) (NSW 2009 Report 38); Investigation into Altruistic Surrogacy Committee, Queensland Parliament, Report (2008) (QLD 2008 Report); Legislative Council Select Committee, Parliament of Tasmania, Report on Surrogacy (2008) (Tasmania 2008 Report).] According to Willmott, Australia "takes an inconsistent strategy to the complicated issue of surrogacy" and its legal framework for the practice is "fragmented, unreasonable, and inefficient.[ Lindy Willmott, Surrogacy: ART's forgotten child (2006) 29(2) University of New South Wales Law Journal, 227-232.]" The express ban on commercial surrogacy is the only aspect of this consistently complicated structure of several legal approaches.

In Australia, the declared goals of surrogacy legislation[ E.g., Parentage Act 2004 (ACT); Surrogacy Act 2010 (NSW); Surrogacy Act 2010 (Qld); Surrogacy Act 2012 (Tas); Assisted Reproductive Treatment Act 2008 (Vic); Status of Children Act 1974 (Vic); Surrogacy Act 2008 (WA). ] and practice have been and currently areto thwart the abuse of people with vulnerabilities, avoid commercialising reproduction, and safeguard the interests of children. The topic of domestic commercial surrogacy, or agreements for commercial surrogacy made and carried out in Australia, hasbeen conspicuously absent from the agendas for Australian legal reform and legislation.

Over Conservative Approach

Australia's ban on commercial surrogacy indicates a cautious (oreven protective) approach to regulation. Such a mindset is at odds with the liberal philosophy that ought to guide Australian regulatory policy-making and is in direct opposition to the process now being taken to regulateART, which mainly, if unofficially, acknowledges a presumption supporting procreative liberty.

One of Australia's most thorough studies of surrogacy practicewas conducted recently with 602 participants (318 intended parents, 160 surrogates, and 124 spouses of surrogates) in 160 non-commercial surrogacy agreements.[ Miranda Montrone, Kerry A. Sherman, Jodie Avery, and Iolanda S. Rodino, A comparison of sociodemographic and psychological characteristics among intended parents, surrogates, and partners involved in Australian altruistic surrogacy arrangements (2020) 113(3) Fertility and sterility, 642-652.] The majority of the cases under study (89.9%) required surrogacy owing to the intended moms' medical histories or health risks; the remaining cases included male same-sex partners as the intended parents (10.1%).

The essay argues that given the changed scenario, social fabric and medical complications and developing mindsets, people are choosing surrogacy not because of alternatives but due to only option available with them. It is but obvious to presume that same sex couple would need to utilize the surrogacy option even they wish to have and raise a child. In this case, it can be contemplated that domestic non-commercial surrogacy cannot cater to all the people. Besides there are risk factors which determine the availability, the pursuing of the choice and utilizing international commercial surrogacy options.

The parental choice of utilizing international commercial surrogacy is evidenced by the rising number of citizenship applications for Australian children born abroad through surrogacywhich rose from 10 in 200809 to 232 in 201819.[ Miranda Montrone and Petra Thorn, Surrogacy in Australia (2020) 17(5) Journal of Reproductive Medicine and Endocrinology 240, 243.] The decision to pursue international commercial surrogacy is influenced by severalreasons, including restrictions on non-commercial surrogacy, a dearth of local surrogates, and the prohibition of commercial surrogacy in Australia. However, other experts argue that this may be due to a lack of knowledge about the risks involved with commercial surrogacy abroad and the viability of non-commercial surrogacy alternatives in Australia.

The essay argues that due to non-existence of exhaustive legal framework regarding commercial surrogacy and growing concern among intended parents regarding altruistic surrogacy, the rise in international commercial surrogacy even at the risk of criminal prosecution is at alarming increase in Australia. It directly attributes to the failure of legislative intervention in acknowledging and formulating the law that represents the nuance in the ideology with the main object of protecting the surrogate mothers, providing ease in facilitating the process while continue to prevent the abuse of the process.

Complexity in Process

If she has one, the surrogate and her partnerare the child's legal parent(s) at the moment of the child's birth in all states and the ACT of Australia. However, if specific requirements are satisfied, the intended parent(s) may applyfor the transfer of parentage after the child is born. According to an Australian Senate Committee in 2011, this regulation aimsto safeguard surrogates against exploitation or coercion.

Tremellen and Everingham note that there are few altruistic surrogates available in Australia due to the country's ban on advertising (with the exception of Western Australia), and many intended parents prefer to stay away from these due to potential emotional and psychological repercussions.

Australia's criminal laws are complicated and unclear; they differ significantly in the way they define commercial surrogacy, what behaviours they forbid, and the consequences they impose.[ Anita Stuhmcke, Looking backwards, looking forwards: judicial and legislative trends in the regulation of surrogate motherhood in the UK and Australia (2004) 18(1) Australian Journal of Family Law 13-40.] Paradoxically, a "commercial" payment is characterised by what it is nota fair expenditure. Every country has a different legal definition ofa "reasonable expense"; some reports are strict and specific, classify costs by both kind and amount andcall for written receipts, while others use a broader concept of "reasonableness."[ Millbank, Jenni, Rethinking commercial surrogacy in Australia (2015)12(3) Journal of bioethical inquiry, 477-490.] The definition of what constitutes (by default) a commercial paymentvaries. While mostAustralian states base their definitions on payment to the surrogate, Western Australia establishes its definition on payment to a third party. As a result, an agreement in that state is considered commercial if a third-party intermediary gets paid,even if the surrogate herself is not.

While certain legislative and Law Reform Commission inquiries on surrogacy have addressed whether or not a genetic connection should be required in surrogacy, they have not consideredthe requirements for being a genetic parent. For infants delivered through foreign surrogacy, the existence or lack of a genetic tie between the child and its intended parents is critically crucial.

The only method for parents who have participated in commercial surrogacy arrangements, whether in Australia or overseas, to be recognised as the child's legal parents or to be given parental responsibility is to submit an application for orders to the Family Court. Since international commercial surrogacy agreements are like a "square peg" trying to fit into a "round hole" created by the FLA presents difficulties for the Family Courts. Altruistic surrogacy arrangements that have been accepted by the court are taken into account by FLA regulations.

It is not unlikely that parties will engage in a surrogacy agreement without being aware of one or more critical aspects of their state's legal framework. Even after receiving expert guidance, including legal advice, beforethe arrangement, there aremany cases in the UK where intended parents misunderstood significant substantive legal requirements (such as regulations on settlement, domicile, legal parentage, and the national validity of birth records issued abroad).

Furthermore, according to news accounts and current Australian case law, the intended parents and their solicitors are perplexed about fundamental issues like the laws governing legal parentage. Male intended parents frequently make the error of assuming they have parental rights even when conception was helped since they are genetic parents.[ Jenni Millbank, De facto relationships, same-sex and surrogate parents: Exploring the scope and effects of the 2008 federal relationship reforms (2009) 23(3) Australian Journal of Family Law 160, 1716] Another prevalent misconception isthat being listed as a parent on a birth certificatedemonstrates that parenthood exists. Intended parents frequently believe that, for instance, having both intended parents listed on a birth certificate that was issued overseas guarantees that Australian law will automatically recognise them as the child's legal parentsor the inclusion of a male genetic parent on the birth certificate gives him legal status as a parent.

Change Social, and Technological Paradigm

The surrogacy scene has significantly changedin the three decades since law was first established. Today, a variety of factors, including a decreasing number of children available for adoption, a global economy, rising infertility, rapid advancements in scientific technology for human reproduction, the lack of options for some couples, and an increasingly accepting public view attitude towards the utilisation of such technology, have led to an increase in the use of surrogacy to build families[ Ruth Weston, Australian Institute of Family Studies, Lixia Qu, Robin Parker, and Michael Alexander, It's not for lack of wanting kids: A report on the Fertility Decision Making Project (2004) AIFS, ]. As a result, attitudes towards treating infertility are substantially different today thanin the 1980swhen commercial surrogacy became illegal.

For example, in South Australia, in November 2007, the Social Development Committee of the South Australian Parliament issued a report on their investigation into gestational surrogacy in South Australia. The Report stated that commercial surrogacy should still be illegal, but altruistic gestational surrogacy should be legalised so that a gestational surrogate can receive ART. In September 2008, a revised Statutes Amendment (Surrogacy) Bill was brought to the Legislative Committee in order to support this proposition. In the end, the Statutes Amendment (Surrogacy) Act 2009 (SA) was approved by the legislature and went into effect on November 26, 2010.[ Tammy Johnson, The regulation of commercial surrogacy in Australia: A harm analysis (2020) PhD diss., Queensland University of Technology. https://doi.org/10.5204/thesis.eprints.206170 ] The Act expressly incorporated provisions providing for the regulation of altruistic surrogacy and revised the Family Relationships Act 1975 (SA), the Births, Deaths and Marriages Registration Act 1996 (SA), and the Assisted Reproductive Treatment Act 1988 (SA). Only heterosexual married or de facto couples can nowenter into "recognised surrogacy agreements" under the Family Relationships Act 1975 (SA), as modified. Becausecommercial surrogacy remains an officially forbidden practice, these arrangements must be altruistic.

The essay argues that the shift in the legislative approach should now takes into consideration the arrangement of the commercial surrogacy that align with the welfare of the child, surrogate mother and intended parties. It goes without saying that regulation of commercial surrogacy is required by the legislation suited to the particular territory, region or demography. Thus, a territorial or state law along with federal law can fulfill this purpose by recognizing the state of development, technological advancement, necessity of this arrangement in the wake of liberalized relationships, autonomy and rights. Commercial surrogacy can be finely developed in lines with the rules of altruistic surrogacy which involves beneficial payments to the surrogate mother and effective and hassle-free service to the intended parties.

Feminist Critique

By over regulating and constraining commercial surrogacy, the laws are said to be encroached on liberty of human females on their organs and their exercise. Supporters contend that a criminal prohibition is detrimental to the reproductive liberty of surrogates. Criminal restrictions "insinuate that surrogates are not proactively or consciously choosing their course" and "reinforce the state's power of deciding what makes up legitimate and illegitimate reproduction.

According to current feminist academics, traditional ideas of reproductive labour may face a "powerful challenge" from commercial surrogacy as women's reproductive abilities are "valued and monetized" outside of the home, frequently giving women with limited economic options a source of financial resources.

The essay argues that the feminist critique is but one facet of arguments in favour of regulating commercial surrogacy law in Australia. It would act as a deterrent for Australian citizens to opt for international surrogacy which complicates the process of determination of parentage, Australian citizenship and rights for the born child. The essay further argues that the legalization of commercial surrogacy would help surrogate mother in exercising the autonomy on her body and decisions, it is the possibility that in the event of altruistic surrogacy women in closed relation are compelled to be surrogate mothers for which they do not get compensated financially. The process as it is bereft the surrogate mothers from exercising their right to autonomy while being compelled emotionally and mentally to bear a child of relatives.

Arguments rationalizing criminalization of commercial surrogacy

People, advocacy organisations, and legislators reject commercial surrogacy for variousreasons, some of which are culturally unique. However, two moral foundations generallysupport opposition to commercial surrogacy.[ Elly Teman, Birthing a mother: The surrogate body and the pregnant self. (University of California Press, 2010).] First, detractors worry that commercial surrogacy is unethical. The possibility of surrogate exploitation is increased by the emergence of commercial exchange insofar as it makes it possible for wealthy individuals to purchase the procreative services and parental rights of weak women.

Some contend that impoverished women with few career options will be coerced into becoming surrogates for financial gain, reducing them to the "paid breeder" position similar tosex labour and pornography.[ Alexander M. Capron and Margaret J. Radin, Choosing family law over contract law as a paradigm for surrogate motherhood (1998) 16(1-2) Law, Medicine and Healthcare, 34-43.]Second, detractors contend that commercial surrogacy 'commodifiesmothers and children. It devalues women by erasing the unique tie between mother and child during pregnancy and by reducing them to insignificant "objects of use,"it devalues kids by treating them like things to be bought and sold.

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