Monday, February 22, 2016

Economist: allow commercial surrogacy

Academic economist Dr Mark Dodd argues that commercial surrogacy should be allowed in Australia- from an economic point of view.


Submission to The Standing Committee on Social Policy and Legal AffairsInquiry into surrogacy
As an academic economist, I have in recent years been conducting research regarding surrogacy and in particular transnational commercial surrogacy. In this submission I will respond to several of the themes of the terms of reference based on the areas of my scholarly expertise as an economist, and with reference to related academic literature.
As complex and emotive an issue as surrogacy is, it is important to think rationally about the welfare of all those involved directly in surrogacy. The main participants are the intended parents, the gestational surrogate, donors of any gametes, and the children conceived and born through such an arrangement. Any regulation of surrogacy arrangements ought to be determined primarily by the interests of those parties. In the below discussion I will focus primarily on the contracting parties with respect to surrogacy, that is the intended parents and the surrogate. Of course the wellbeing of children born through these arrangements is of paramount importance, but since this is less controversial, I will provide brief commentary on that at the end.
Since the advent of modern forms of surrogacy through assisted reproductive technology, there has been much discussion of whether it should be prohibited, how it should be regulated, and whether contracts should be enforced. Posner (1989) provides a cogent argument for the enforceability of surrogacy contracts based on law and economics (albeit with reference to traditional surrogacy rather than gestational surrogacy). The eminent judge in summary finds ‘no persuasive evidence that contracts of surrogate motherhood are less likely to maximize value than the classes of contracts that the law routinely enforces(Posner 1989, Page 26). Similar arguments are put forward by others regarding the enforceability of gestational surrogacy contracts (Hatzis 2003).
One big controversy regarding surrogacy is where or not it is appropriate to allow surrogates to be compensated financially for their surrogacy pregnancies. This argument is sometimes framed as altruistic surrogacy versus commercial surrogacy, which can be misleading. The introduction of compensation is not likely to remove all altruistic motivations, and indeed there is evidence that even in contexts such as transnational commercial surrogacy in Thailand that many of the commercial surrogates were motivated to a substantial degree by altruistic intentions (Hibino and Shimazono 2013).
There has been debate within economics about the impact of money on the supply of blood and organ donation going back to Titmuss (1970). The argument is on one hand is that paying compensation to donors will increase the supply of willing volunteers who take the incentive of money into their decision, but on the other hand it may be that being paid may somehow dampen the natural altruistic motivations of some individuals. More recently some of these issues around the supply of blood have been summarised by Slonim, Wang et al. (2014), and many of these can apply also to surrogacy.
Several theoretical economic models have been proposed which incorporate altruism and compensation as possible incentives for surrogates (Hewitson 1997, Kossoudji 2005, Banerjee 2013). These theoretical models add to our understanding of the possible impact of compensation on the supply of surrogates, but there is certainly need to investigate further the experiences and views of surrogates about this issue.
Discussions of transnational surrogacy are often tied into the issues around compensation, since many (but not all) overseas surrogacy arrangements entered into by Australians are compensated surrogacy arrangements. Of course a reasonable proportion of overseas surrogacy arrangements entered into by Australians take place in the well-regulated United States or Canada (Everingham, Stafford-Bell et al. 2014), which may be quite different contexts to developing countries such as India, Thailand and Nepal (all now no longer destination countries for Australians seeking surrogacy). According to survey data, the United States was the most popular destination country for international surrogacy for Australians prior to 2009 (Everingham, Stafford-Bell et al. 2014), and is likely to grow in importance once again as other alternatives have disappeared. For that reason, when considering regulation of overseas surrogacy, it is important to think about the context of Australians engaging with the well-regulated US surrogacy market. Even the UK, which is more open to domestic surrogacy than Australia in many ways, still has many intended parents going to the US to enter a surrogacy arrangements for many reasons (Gamble 2012). To get a ballpark estimate of the amount of surrogacy arrangements occur in the United States we can look at the following data. The Centers for Disease Control and Prevention (2014) reports that gestational surrogates were used in 901 ART cycles, or around 1% of ART cycles in 2012, which would include both domestic and international intended parents, and would not capture all surrogacy arrangements.
When it comes to developing countries, these discussions are often similar to other contexts of outsourcing to lower-income countries, and similar solutions to perceived problems are proposed such as ‘fair trade’ principles (Humbyrd 2009). Available evidence for the case of Thailand does suggest however that in the Thai surrogates were well-compensated and in most cases happy with their decision. Surrogacy packages in Thailand were advertised at around 30,000USD, of which the surrogate would reportedly receive around 10,000USD (Whittaker 2014). This is quite a substantial sum compared to the minimum wage of 300 baht, around 10USD per day (Ra 2014). A survey of Thai surrogates found that they had annual income equivalent to a range of 3500 to 11000USD per year, and varied education levels from only elementary school through to college graduates (Hibino and Shimazono 2013). In additional to monetary motivations, the importance of altruistic motivations for Thai surrogates through Buddhist concepts of merit-making has been often expressed by surrogates and researchers (Hibino and Shimazono 2013, Kodama 2013, Whittaker 2014). And while in the case of surrogacy in India there are certainly have been concerns raised about potential exploitation (Panitch 2013), there are also accounts emphasising the agency of the surrogates (Deomampo 2013), and the potential for large returns for the surrogates (Vora 2013). There are certainly risks involved with the surrogacy industry in developing countries, but these should not necessarily by address by prohibition. Evidence shows that there are many cases where such transnational commercial surrogacy arrangements have been beneficial to all parties involved, who maintain healthy relationships to this day.
While the focus of discussions so far has been on the contracting parties, the surrogate and the intended parents, it is important to consider separately the impacts of a surrogacy arrangement on the children born through such a means. Were surrogacy not permitted, a child born through surrogacy would not exist. Posner (1989) exhorts us not to neglect this fact in the consideration of surrogacy contracts, and further suggests that enforceability of surrogacy contracts is important in ensuring that children come into the world in a stable environment. It is of course also relevant to consider how the psychological and emotional wellbeing of children born through surrogacy may be affected by the fact that they were born in this way. As the children from the earlier cases of surrogacy back to the 1980s reach adulthood, there is further evidence becoming available on their wellbeing. A series of papers from the UK consider the wellbeing of the children, their families, the surrogates and their families (Golombok, Readings et al. 2011, Jadva, Blake et al. 2012, Golombok, Blake et al. 2013, Jadva and Imrie 2013). From these studies
Submission to Inquiry Into Surrogacy Dr Mark Dodd 31 January 2016
there is little evidence of any persistent negative effects on the emotional wellbeing of the children involved.
In summary, while there are many complex issues around how surrogacy arrangements should be organised and regulated, there are also many successes. Surrogacy arrangements that have occurred within Australia often have been successful, and this experience could be built about by harmonising state laws, and by considering the possibility of moving to a well-regulated compensated system similar to the United States. Australians will continue to seek to engage in surrogacy arrangements overseas in various countries, and from Australia’s perspective one of the most important roles is to make sure that these arrangements are legal under both countries laws and international law, and that the issues around things like citizenship and legal parentage are organised in a way that will be most beneficial to the children.

"Those who want children, truly want children will risk almost anything to have them"


So said an unnamed gay dad via surrogacy who made a submission to the inquiry. Reading the submission is compelling:

The laws across states on surrogacy are inconsistent and it is not a simple task for an average person on the street to know to access them let alone decipher their meanings. If an intended parent even understands that they need legal advice, they are then required to pay for it, in order not to run afoul of their state’s or territory’s laws. This; for people who already have enough to think about in terms having a child anyway as well as the difficulties and expense of having a child, in an assisted reproductive way. Worse, we ourselves saw a small window of opportunity, as the American option was too expensive for us to ever contemplate: India, the door to which was gradually closing, became our best option and we were also rapidly becoming too elderly to contemplate infants and their demands if the Indian option closed and we had to wait to find somewhere else. This was essentially our one opportunity to consider once again having a family of our own.
We discussed it thoughtfully, if briefly, and made a careful decision. We had considered all other options open to us also. Adoption was closed to us largely because of our age. If commercial surrogacy had been available in Australia much earlier, we certainly would have taken advantage of it. But this idea of creating a family wasn’t a decision we took lightly, thoughtlessly or without consensus as is possible (if seldom the case) amongst fertile couples. As a bonded pair we decided we had what it took to create a safe, happy home for a child or children.
My partner and I were elated when we discovered our surrogate in India was pregnant. We had done as much homework as was possible from a distance, into the moral, ethical and health standards of our clinic and thought we had made a wonderful decision, their primary concern was for their surrogate, then the fetus/embryo/infant and the client came a dead last. We were understanding if not exactly happy with this. As it turned out the only ethical problem we had was with their lack of care on how much they charged their clients as costs were insanely convoluted and difficult to track and our original quote was well below what we eventually paid. We suffered the additional expense of travelling to India, waiting the month required to run the administrative gauntlet and costs associated with that, whilst paying to for accommodation. This we did all this, whilst out of our own environment unlike many couples with new children, without the aid of public health purse, caring for the wonderful bundles of joy (we were blessed with twins) around the clock. We were exhausted but ever so happy to have these wonderful new babies.
So you can imagine how heartbroken we were to come home and through the natural process of gravitating towards other families who had their children via surrogacy, support and shared stories, discover that we were not considered legal parents and in fact may have inadvertently broken the law in order to create our family and complete our home. Now - If we want to become the legally defined carers of our own children (already genetically related to me and cared for by my stay at home partner for 5 years now), then we had to undergo a further legal expense. That said, we are now the proud parents of two bonnie and exuberant 5 year olds, looking forward to their first year in ‘big school’. 5 year olds we watched carefully hit every developmental milestone. Worried over if they were a little late. Celebrated when they achieved them early.
Shared Christmases, birthdays and special occasions with an extended family of Aunts, Uncles, Grandmothers and Grandfathers as well as a wide circle of friends and neighbours. Shared first time experiences with, first bus ride. First swim. First taste of new foods. Shared with them and helped them overcome their little disappointments. Loss of a popping balloon, supporting them to become less frightened of a lizard in the garden. Hugging away the hurt of being bumped over by an over exuberant mutt. These are the very same things every parent experiences. These are the normalities of existence that eventually come from such a difficult and unusual birth.
My partner ran after two girls for hours on their two wheeled bikes, teaching them to ride, only to be mildly disgruntled at my arrival home; post work, and 5 minutes attention before they ‘got it’. They credited me with teaching them to ride! It is all these moment crammed together making up our vast and layered lives that are the fundamental building blocks of a solid foundation for model citizens. We cannot know what their future will actually hold and what circumstances may change for them. But what we can determine is that given the expense and difficulty of bringing them into being, they are well and truly wanted and given their development, they have been truly cared for and loved by a couple whose strong foundation of a near 30 year relationship has been a cornerstone for them to start building their lives from. They are more likely to be good Australians than children who were born without thought, from a single night of drunken passion, for example, to negligent parents. Less likely to become welfare dependent or criminally inclined. This is a generalization I know. But it is also a generalization that cannot be denied in general, the statistic prove it.
Our children are happy. We are happy. And the love that filled our home has only increased exponentially. We are a family. We are also a gay couple, with children.
There are several things needed in Australia.
People will seek and eventually access surrogacy and some, have broken the law, knowing that to be the case, some have inadvertently done so. But what I know is that some people who feel they are at the end of the rope in terms of creating a family will be driven to extreme measures in order to fulfill that dream. It is not a selfish dream, it is the standard, the norm, the ‘taken for granted’ of every fertile couple in Australia. For some people adoption is not a legitimate choice, when the possibility of genetically related offspring hails, again considering the regularity with which neglectful and/or abusive ‘fertile’ people may produce offspring and be granted state funded medical care to do so. No license to be obtained, no administrative hoops to jump through, no extreme costs to overcome. In accessing an effectively banned and unregulated industry overseas or abroad, couples, surrogates and the unborn children ALL face risk. Some stories end happily, others end disasterously for one or more involved. Further money drains from the economy. There are simply not enough altruistic surrogates in Australia to fill the need and the legal issues are too disparate across states and unclear to the prospective participants.
1) The first thing that is needed in Australia is a regulated commercial surrogacy
legislation, on a National Level.
GLBTIQ couples aren’t necessarily infertile but are incapable without assistance of delivering a child on their own. There is a historic case of a single gay male, producing and co-parenting 7 children to various other lesbian couples. And if that existed there is definitely the possibility it
Inquiry into Surrogacy Submission 2
exists still. Whilst this is the modern era with the so called ‘modern family’ and again, the law would not deter nor necessarily be able to deter, this sort of thing from happening, it does see the breakdown of the traditional (worked for centuries) modern model of the nuclear family with extended family interaction. Whilst I suspect many (possibly most) GLBTIQ folk would welcome the ability to create the less complicated, less in need of negotiation, nuclear model – they will continue to create families any way they can. They feel the pull towards parenthood just as strongly as any other folk.
2) The second thing – Gay and lesbian community inclusion needs to be considered
in any model of commercial surrogacy legislation Australia considers.
Regulation of the commercial surrogacy industry ensures there are no grey areas, no misinformation and a solid yet transparent legal process for those needing to create their families under this method. This is safer for surrogates, safer for any potential offspring and safer for the intended parents. Unregulated, overseas surrogacy is not, but as I say, people wanting a family will risk it, despite or perhaps in spite of laws.
3) The third thing - Not only is legislation required to create a national surrogacy industry (and let’s face it, there are commercial benefits for Australia in having a commercial surrogacy program in Australia so the term industry applies) but regulation around the industry should be developed to keep all concerned informed, protected and aware of their rights and responsibilities.
In short, after having been through the process of surrogacy overseas and been lucky with our outcome, then bonding with other parents whose journey was the same but perhaps whose destination wasn’t. I realize that what is needed in Australia is a commercial surrogacy program to keep Australians; ALL Australians (including the potential ones) safe and under the protective wing of their government. It is important that this commission recognize that those who want children, truly want children will risk almost anything to have them and it isn’t at all fair that, their desire to fulfill the dream all others find so painless, should not only be difficult for them but also possibly encumber the lives of their children, through possibly creating financial hardship and legal hardship that others do not face.

WA regulator's submission to the surrogacy inquiry

Probably to my great surprise, the WA regulator, the Reproductive Technology Council, called for surrogacy agencies to be regulated, and for there to be consistent national laws, while insisting otherwise that everything is fine in WA otherwise.


Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs
The Western Australian Reproductive Technology Council (Council) has a central role in the regulation of reproductive technology (Human Reproductive Technology Act 1991) and surrogacy (Surrogacy Act 2008) in Western Australia (WA). Council has a broad range of expertise and interests from its own membership, and welcomes the opportunity to comment on the regulatory and ethical aspects of domestic and international surrogacy. Council submits commentary in relation to the following aspects of the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry:
1. The role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements.
3. Issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children.
1. The role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements.
Domestic surrogacy arrangements
Australian jurisdictions take different approaches to the regulation of surrogacy, however the overarching principles are protecting the welfare of children born from surrogacy arrangements and the prohibition of surrogacy for reward (financial or material).
The Report on the Review of the Surrogacy Act 2008 (WA) (Department of Health, 2014) highlighted the different requirements across Australian jurisdictions for:
“eligibility, age restrictions, background checks, types of surrogacies that are permissible, approval processes, extraterritorial provisions prohibiting commercial surrogacy, advertising restrictions, residency requirements, and requirements for transfer of parentage.”
Department of Health, 2014, p. 17.
This lack of uniform legislation causes confusion for those seeking surrogacy arrangements, service providers, and regulators. In addition, where the arranged parent(s) (commissioning / intended parent(s)) and the birth mother (surrogate) reside in different jurisdictions, or when circumstances change (such as moving to another state or an unplanned birth in another state) this may further complicate arrangements.
In 2009 the Standing Committee of Attorneys-General (SCAG) outlined proposals to harmonise regulation of surrogacy across Australia. Draft model provisions were developed based on 15 principles for surrogacy laws, which were optional and focused mainly on transfer of parentage. A nationally consistent framework for the
Reproductive Technology Council Submission 10/02/2016 Page 1
Inquiry into Surrogacy Submission 25
regulation of domestic surrogacy arrangements would provide greater clarity for people seeking surrogacy arrangements and practitioners alike.
Council note the findings of the New South Wales Attorney General’s review of the Surrogacy Act 2010 (NSW) in that State are yet to be published. This information may provide greater insight into these complex issues and contribute to a nationally consistent framework for the regulation of domestic surrogacy arrangements. Similarly, the National Health and Medical Research Council ‘Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research (2007)’ is under review. The information gathered in this consultation will also shed light on a range of issues that are relevant to the regulation of surrogacy.
Facilitation of Surrogacy Arrangements
The Surrogacy Act 2008 (WA) prohibits-
making a surrogacy arrangement that is for reward;
publishing an inducement or willingness to make a surrogacy arrangement
that is for reward;
knowingly providing a service to facilitate a surrogacy arrangement that is for
reward (unless it is a health service provided to the birth mother after she has
become pregnant);
a person receiving, or seeking to receive, reward for introducing or agreeing
to introduce a party to a surrogacy arrangement (whether or not it is intended that the surrogacy arrangement be one that is for reward).
In WA, there are no restrictions on a person advertising for altruistic surrogacy. Importantly, a licensed fertility clinic may arrange for a woman who has approached the clinic offering to be a birth mother to be introduced to prospective parent/s (Surrogacy Directions 2009 - 9).
While restrictions relate to publishing a willingness to make a surrogacy arrangement for reward, they do not necessarily prevent facilitation of surrogacy arrangements by intermediaries. For example, there are a number of internet sites that may either directly or indirectly facilitate such surrogacy arrangements for WA / Australian residents.
Council calls for greater accountability for intermediaries who provide advice to, or provide a means of contact between, parties who are looking to enter a surrogacy arrangement. Notably, in the United Kingdom (UK) the Hon Justice McFarlane commented on the not-for-profit organisation ‘COTS’ (Childlessness Overcome Through Surrogacy):
“Given the importance of the issues involved when the life of a child is created in this manner, it is questionable whether the role of facilitating surrogacy arrangements should be left to groups of well-meaning amateurs.”
Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), [29].
In a number of surrogacy arrangements facilitated by COTS, the commissioning couples were domiciled overseas, and COTS failed to consider the basic requirements for a parental order. Consequently the Hon Justice McFarlane questioned if some form of agency inspection or authorisation should be required.
Reproductive Technology Council Submission 10/02/2016 Page 2
Inquiry into Surrogacy Submission 25
Surrogacy is a significant life event for everyone involved; therefore the regulation of such ‘intermediaries’ is highly desirable. Alternatively, there may be a role for government in the establishment of agencies by which, similar to adoption, professional support and integrated services could be provided. This would also ameliorate the risks of pecuniary interests, where purported not-for-profit intermediaries may have links to related legal practices, consulting services, or overseas fertility clinics.
Extraterritorial Issues
New South Wales, the Australian Capital Territory and Queensland all have extraterritorial reach in relation to prohibition of commercial surrogacy. It is notable that there have been no prosecutions. Arguably, it is not in the best interests of the child to prosecute the parents (after the fact). Western Australia does not have specific exterritorial provisions in the Surrogacy Act 2008 (WA), but prosecution under section 12 of the Criminal Code 1913 (WA) may be possible where any part of a commercial surrogacy arrangement is undertaken in WA.
3. Issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children.
The general ethical and legal frameworks in place across Australia reflect concerns for the welfare and safety of the birth mother and her family, the arranged parents, and any child that might be born from a surrogacy arrangement.
The general criteria for consent include: competency; disclosure of material risk; optional and voluntary participation; understanding the nature, risks and benefits; and participation without coercion. This should require, as a minimum, psychological assessment, on-going counselling and independent legal advice.
There should be no incentives that might unduly influence a person to enter a surrogacy arrangement, which would undermine the principles of voluntary consent. With respect to forms of payment, Council note terminology recommended by the Nuffield Council:
Payment: a generic term covering all kinds of transactions involving money, and goods with monetary value, whether those transactions are understood as recompense, reward or purchases;
Recompense: payment to a person in recognition of losses they have incurred, material or otherwise. This may take the form of reimbursement of direct financial expenses incurred in donating bodily material (such as train fares and lost earning) or compensation for non-financial losses (such as inconvenience, discomfort and time);
Reward: material advantage gained by a person as a result of donating bodily material that goes beyond compensation the person for the losses they incurred in donating. If reward is calculated as a wage or equivalent it becomes remunerations;
Purchase: payment in direct exchange for a ‘thing’ (e.g. a certain amount for a kidney, or per egg).”
Nuffield Council on Bioethics (2011) p 70.
Reproductive Technology Council Submission 10/02/2016 Page 3
Inquiry into Surrogacy Submission 25
The Surrogacy Act 2008 (WA) allows for payment of reasonable expenses associated with: (a) the pregnancy or the birth; and / or (b) any assessment or expert advice in connection with the arrangement. This includes reasonable expenses associated with achieving, or attempting to achieve, the pregnancy. Section 6(3) of the Act further provides as follows-
(3) An expense is a reasonable expense for the purposes of subsection (1)(a) to the extent only that it is —
  1. (a)  a reasonable medical expense that is not recoverable under any health insurance or other scheme; or
  2. (b)  the value of earnings foregone because of leave taken —
    1. (i)  for a period of not more than 2 months during which the birth occurs or was expected to occur; or
    2. (ii)  at any other time for medical reasons arising during the pregnancy;
    or
  3. (c)  a reasonable expense of psychological counselling; or
  4. (d)  a premium payable for health, disability or life insurance that —
    1. (i)  would not have been taken out if the surrogacy arrangement had not been entered into; and
    2. (ii)  provides cover for a period during which an expense referred to in another paragraph of this subsection is incurred or might be, or have been expected to be, incurred.
Thus reimbursement of direct financial expenses is permitted and should be entirely transparent.
In the face of a growing global commercial surrogacy market, ‘controlled’ payments for domestic surrogacy arrangements have been proposed to decrease the demand for international commercial surrogacy by increasing the supply of surrogates in Australia. However, it is incongruous for discussions about forms of payment for surrogacy to take place in isolation from other forms of donation including embryos, gametes, tissue and solid organs. The insidious effects of compensation on altruism should not be underestimated:
"Payment for cells, tissues and organs is likely to take unfair advantage of the poorest and most vulnerable groups, undermines altruistic donation, and leads to profiteering and human trafficking.”
World Health Organisation, 2010, p 5.
The same can be said of commercial surrogacy in high and low resource countries, with the global surrogacy market estimated to be worth $US 6 billion a year (Deonandan, 2015).
Low resource countries with little or no regulations, low costs, and a ready supply of surrogates for hire and human eggs to purchase, have fuelled the growth in international surrogacy. At the same time there has also been increasing concern about the exploitation of surrogates, and the risks to their health, with reports of the death of two egg donors and a surrogate in India, the liberal use of elective
Reproductive Technology Council Submission 10/02/2016 Page 4
Inquiry into Surrogacy Submission 25
caesarean section for convenience (with all the inherent risks for the surrogate and baby), multiple embryo transfer and embryo transfer into multiple surrogates (to increase success rates), and human trafficking. High profile cases involving Australian citizens caused public outrage. In one case a baby with Down’s syndrome was left with the surrogate in Thailand; in another, one twin was left behind because the parents allegedly could not afford two children (the whereabouts of the latter child is unknown).
There are also implications for the destination country’s health system. The ‘health conveyor belt’ shifts qualified personnel from public to private clinics and away from those who need it most. There are growing concerns about the exploitation of arranged parents and surrogates by unscrupulous agents and fertility clinics (Federal Bureau of Investigation, 2013; 2015; Lewin, 2014).
Council note that tolerance of destination countries to overseas commercial surrogacy is waning. In November 2014, Cambodian authorities advised the Australian Government that the act of commercial surrogacy, or commissioning commercial surrogacy, was illegal in Cambodia. Thailand, India, Nepal, and Tabasco in Mexico, have recently prohibited foreign surrogacy arrangements.
Only a few countries allow commercial surrogacy (eg. some parts of the United States of America (USA)), Ukraine, Georgia and Russia). However, there are calls for reform in Russia (Faber-Tetrault, 2014):
“We are calling to put the commercial component of this phenomenon under strict control. As soon as the services of surrogate mothers became available in Europe, criminal groups immediately appeared there and started recruiting women from Hungary, Moldova and the UK.”
In the USA, surrogacy laws are inconsistent and residents often travel interstate to a ‘surrogacy friendly’ jurisdiction. In states where commercial surrogacy is permitted, for example California, costs start at US$70,000 but can exceed $100,000. It is to be noted that for many USA citizens commercial surrogacy is beyond their reach.
Council note that reference has been made to the ‘California model’ of commercial surrogacy. While California is considered the most surrogacy friendly state it has also been named the capital of reproductive litigation, partly due to the global surrogacy market. Recent amendments to California law were as a consequence of a scandalous baby selling ring. Theresa Erickson, a well-known California lawyer, Hilary Neiman, the operator of an adoption/surrogacy agency, and Carla Chambers, a surrogacy facilitator, were prosecuted in relation to the sale of unborn babies to prospective parents (Federal Bureau of Investigation, 2013).
The vulnerability of commercial surrogates is illustrated in two current litigation cases in the USA, concerning the selective reduction of triplets. The commissioning parents in each case have demanded the surrogate mother terminate one of three fetuses, citing fears of later medical complications. Failing to comply with this request puts both surrogate mothers at risk of not being paid and incurring medical costs. Notably, a US surrogacy lawyer reported that in 82 out of 118 surrogacy disputes, the intended parents changed their mind (Nicolau, Purkeypile, & Merritt et al. 2015).
Yelena
Mizulina,
Russian
Senator
(2015).
Reproductive Technology Council Submission 10/02/2016 Page 5
Inquiry into Surrogacy Submission 25
Most surrogates in the USA are required to sign confidentiality agreements; therefore very little is known about their demographics or long term health and welfare. They are often presented as mainly middle class, educated, and not motivated by money. Council draws attention to reports that surrogacy agencies target vulnerable groups, such as students (who seek to pay educational fees) and particularly military wives (Parker, 2013). The latter allegedly represent about 15 to 20% of gestational surrogates in the US, despite comprising less than 1% of the population (Howard, 2015). The main attraction is financial, as they tend to be from low income brackets and a surrogate can receive US$30,000 - $50,000.
Conclusions
Council strongly believe that the culture of altruism must be protected.
Altruistic-focused interventions, which remove barriers and support those who are inclined to altruistic surrogacy, should be developed. Consideration should be given to Medicare funding for altruistic surrogacy arrangements in Australia.
The willingness of people to become surrogates should be appropriately channelled through professionally trained intermediaries.
A national ‘Surrogacy Register’ should be considered as a means of allowing people to indicate their willingness to be a surrogate, with appropriate support and counselling.
Consideration should be given to the proper regulation of intermediaries and not-for- profit organisations that provide advice in and facilitate surrogacy.
Public awareness of altruistic surrogacy as a viable and acceptable means of family formation, and the options available within Australia, should be promoted.
Consideration should be given to the establishment government agencies, similar to adoption, where professional support and integrated services could be provided.
Greater collaboration and convergence in regulatory policy development at national and international levels is required. Global regulatory and policy networks (similar to health observatories) should be established and proactive in addressing emerging reproductive issues.
References
Criminal Code Act Compilation Act, 1913, (WA).
Deonandan, R. (2015) Recent trends in reproductive tourism and international surrogacy: ethical considerations and challenges for policy. Risk Management and Healthcare Policy. 8: 111-119.
Department of Health. (2014) Review of the Surrogacy Act 2008. Report to the Western Australian Parliament.
Faber-Tetrault, G. (2014) Russian lawmaker proposes ban on commercial surrogacy. The Moscow Times, 24 April, viewed 9 January, 2016. http://www.themoscowtimes.com/news/article/russian-lawmaker-proposes-ban-on- commercial-surrogate-motherhood/498901.html

Surrogacy Australia's submissions to the Parliamentary inquiry

Surrogacy Australia's submissions, not surprisingly, are in favour of regulated surrogacy in Australia. There are four moving cases spelling out the pain that intended parents go through to have a child through surrogacy. While I chair the Surrogacy Australia legal committee, I took no part in the writing of these submissions, and I am not a member of Surrogacy Australia.



Submission to the House Standing Committee on Social Policy and Legal Affairs
Inquiry into Surrogacy
Table of Contents
Executive Summary About Surrogacy Australia What and why
What is surrogacy?
Why the need? The Status Quo
Proposed Changes Conclusion Personal Stories
Submission 1 Submission 2 Submission 3 Submission 4
Inquiry into Surrogacy Submission 32
Executive Summary
As defined in the Oxford dictionary, surrogacy is “the practice of giving birth to a baby for another woman who is unable to have babies herself”.
Unfortunately this simple definition belies the complex and muddled legislative framework that is currently in operation across Australia.
This mismatch of law combined with the ambiguity in the way it’s applied (especially in regards to overseas surrogacy), has resulted in thousands of Australian couples, through no fault of their own, not being able to realise their dream of starting a family.
And while there are many legal matters to address, from a surrogate and intending parents point of view, we would suggest that there are two high level changes that need to happen:
  1. allow surrogates to be compensated for carrying a baby; and
  2. create a regulated framework that enables intending parents and surrogates to be
    matched.
These two changes on their own would bring untold joy and hope to couples across Australia.
Inquiry into Surrogacy Submission 32
About Surrogacy Australia
Surrogacy Australia was founded in 2010.
We have 5 people on our committee, all are non‐paid volunteers, with each committee member having being personally involved in surrogacy either as an intending parent (IP), current parent or surrogate.
We have over 2,000 people on our mailing list, and have a paying membership of about 400.
We have a growing profile in the media, and have been part of many state and federal committees and inquiries into surrogacy.
In partnership with Families Thru Surrogacy, we run an annual conference which is aimed at helping consumers make an informed decision about surrogacy.
Surrogacy Australia was originally focused around supporting Australians going overseas. However, after the baby Gammy story in 2014 and the subsequent crackdown on surrogacy in overseas countries such as Thailand and India, it has become increasingly difficult for a 100% volunteer organisation such as ours, to keep up with all the changes in overseas laws.
This was compounded by the fact that more countries have started to offer surrogacy services to fill the gap. These countries are often ‘Developing’ nations, and do not offer a well regulated framework for surrogacy.
With this trend increasing, we are concerned about the welfare of surrogates, intending parents and most importantly any babies born in substandard medical conditions.
While we still support Australians going overseas with information and help, we see our primary role now as one to help bring a better surrogacy framework to Australia.
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What and why
What is surrogacy?
While most people have heard of the term surrogacy, there is some confusion to what it exactly means.
In Australia, the most common type of surrogate is a ‘gestational surrogate’. A gestational surrogate is a woman who carries another couples biological child. The fact that the surrogate is not biologically related, is a critical piece of information in the surrogacy debate.
It is critical because some opponents of surrogacy argue that the process of ‘giving up’ the baby after birth to the biological parents is too much of a burden on the surrogate. While support to both the surrogate and intended parents is important, this concern is simply not borne out (pun intended) in practice. This touches on having proper screening processes for surrogates, which we will discuss later in the submission.
Why the need?
In most cases, the need to use a surrogate is not one of choice. While it’s true that the average age of first time mothers is increasing, it is often factors outside the couple's control that requires them to use a surrogate.
Here are three real life examples from our members explaining why they need to use a surrogate:
  1. a woman who had cancer and required her uterus to be removed;
  2. a 28 year women who had such severe endometriosis she had to have a
    hysterectomy; and
  3. a woman who was born with MRKH syndrome (Mayer Rokitansky Küster Hauser ‐
    which is the absence of uterus and/or vagina and/or cervix) meaning she could never carry a baby.
In most cases, women can still can go through IVF treatment (as long as they ovaries) so any embryos created are biologically related.
The Status Quo
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Trying to start a family can be a private matter at the best of times, so when a couple need to look into surrogacy, it often means stepping outside their comfort zone.
This is especially hard to do, if like in many cases, they have already spent years of failed IVF cycles and all the emotional and financial turmoil that goes with it.
Here are some of the challenges people currently face:
  • ●  intending parents can not advertise the fact they require a surrogate;
    this means that someone they know must first know they are trying to have a
    baby, then guess that they need a surrogate.
  • ●  potential surrogates are unable to advertise to be a surrogate;
    this means there are no structured avenues for surrogates to follow to get more information.
  • ●  if intending parents do require a surrogate, their immediate friends and family are often in the middle of creating their own families, thus limiting their options;
  • ●  surrogates can not be compensated;
    the lived experience is that surrogates are not primarily incentivised by the
    compensation, something which can be managed within the framework
    criteria. Compensation or not, it is an amazingly altruistic offer;
  • ●  doctors are reluctant to discuss surrogacy options as it could be seen as facilitating a
    surrogacy arrangement;
  • ●  Medicare will not fund your IVF treatment if you use a surrogate
    the Medicare rules state that they will not help fund any IVF treatment, if the embryos are to be transferred into a woman other than the commissioning mother.
  • ●  when a baby is born, the birth mother (even though in most cases they are not biologically related) is deemed the legal mother.
    These are just a few of the reasons that has made Australian couples look to overseas to fulfill their dream of starting a family.
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Proposed Changes
While we appreciate that further investigation needs to occur in regards to how the legal technicalities are approached (is it a process of State harmonisation of laws, or would the States cede power to the federal government etc) there are effectively three core components that need legislative change. They are:
  1. Create a surrogacy framework that:
    1. allows accredited service providers to match IP’s and surrogates;
    2. allows surrogates to be compensated; and
    3. enforces legally recognition of intended parents.
  2. Make changes to Medicare so that all couples who can not carry a baby have access to Medicare funding for IVF treatment;
  3. Decriminalise people going overseas to engage in compensated surrogacy
‐ this is currently illegal in NSW, QLD and the ACT. It is not enforced, and is not
in the best interests of the child if it were.
While the concerns and well being of the surrogate and intended parents are paramount, it is arguable that the needs of the child should reign supreme, when all decisions relating to surrogacy are made.
Surrogacy Australia are open to any measure that makes sense and is reasonable. From police checks, to counselling, from surrogate screening through to psychological tests, we think a well regulated framework is not only best for all parties, but would make the most sense to the Australian public.
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Conclusion
It is our strong contention that a compensated and well regulated surrogacy framework in Australia is the safest and best option for surrogates, intending parents and of course any children.
While there are already existing protections in place for children born through surrogacy, we believe a compensated framework will strengthen these existing protections, and allow more Australian couples to achieve their dream of starting a family here in Australia, rather than risking huge cost and medical complications overseas.
Our knowledge of how the surrogacy process works here in Australia, as well as overseas in compensated markets such as the US, clearly suggests that when done well, surrogacy is a truly beautiful process that we should be proud of.
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Personal Stories Submission 1
20 years ago due to “gross medical negligence” by a specialist I was given the mind numbing incredulous news that I would never be able to carry a baby.
The specialist had failed to follow correct recall and treatment procedures whilst I was under his care leading to a diagnosis of cervical cancer
My fiancée and I were completely unprepared for this devastating news.
After radical invasive surgery I was advised the only way we could have our own genetic child would be via a surrogacy arrangement.
I had never heard of the term ‘Surrogacy” however over the next 6 years I was going to find out a lot about this word and concept and what it involved.
After many months of intensive counseling and medical preparation we attempted FIVE Non commercial surrogacy (altruistic) using my girlfriend's womb. None of these attempts resulted in a pregnancy.
It takes a certain type of person to become a surrogate and thus it was not as simple as going out and asking another friend to try for us (out of the goodness of their heart).
Our last resort was to investigate Commercial surrogacy. The two countries that could help us were the UK and the USA. After months of research and realizing that the USA had been making couples dreams of forming a family for over 30 years come true, we commenced an arrangement with the Centre For Surrogate Parenting in the USA (CSP).
From day one of making contact with the US based agency we felt supremely confident that CSP had the surrogacy process well researched and planned.
This arrangement was:

  1. very expensive (due to the dollar rate and unplanned medical complications with myself)
  2. difficult at times due to the geographic distance;
  3. tedious with many counseling and legal sessions (in hindsight these sessions were vital and gave us all peace of mind)
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Despite the above we never felt like giving up and we never felt that CSP would give up on us.
We felt 100% confident that the Agency and its medical partner companies were constantly concerned with:
  1. our surrogates well being;
  2. our emotional stability and ongoing commitment to the program;
  3. legal on and ongoing protection of the unborn child
The surrogate chose us, we did not choose or select our surrogate. She read our story and made her mind up if she wanted to help us. We then met her and once we were all counseled and prepared the arrangement commenced.
Our surrogate had children of her own, is a gifted speech therapist for children at risk and to this day, 12 years later after the birth of our amazing identical twin boys she is still in weekly contact with us.
Our boys know and understand:
why I couldn’t carry them in my body;
that both my husband and I are their genetic parents;
all about the lady who nurtured them for 9 months of gestation
We all communicate via email and our surrogate’s children look forward to seeing the photo updates of our family.
We are eternally grateful to our surrogate.
SHE GAVE ME BACK WHAT WAS TAKEN AWAY FROM ME THROUGH NO FAULT OF MY OWN.

We are so grateful to the US based agency for the care, skill and expertise they imparted to us. For them it was never about the money its all about the end result for both the surrogate and the intended parents. The agency was most concerned with the well being of the surrogate as a happy fulfilling experience for her is the best referral an organization like this can hope for.
We encourage childless couples to, via a reputable agency FULLY explore the surrogacy concept and commitment. Being a family and a parent is the most rewarding thing for my husband and I.
Submission 2
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Years trying to have a family?
7+ years to have another child
Money spent
Considerable amount of money on IVF and medical treatment in Australia (upwards of $30,000) and greater than $120,000 in the US.
Personal impact
Until our pregnancy with our child by surrogacy, the fertility journey was extremely difficult and stressful for myself, my husband and our family. Surrogacy has been a world of love and a healing balm.
Benefit of an improved framework
If the laws in Western Australia accurately reflected the facts of a surrogacy situation (it is not an adoption) and arrangements for surrogacy were faster and less prohibitive, we would not have gone overseas.
I was mistakenly diagnosed with adeno‐carcinoma of the cervix after the birth of our second child and my cervix was removed. Due to complications from that unnecessary surgery, I developed secondary infertility and other medical issues which resulted in lot of medical management. After trying to fall pregnant naturally with our much wanted third child, we resorted to IVF. We tried numerous attempts at ‘soft’ and then full‐scale IVF which was extremely expensive, invasive, time consuming and psychologically challenging for myself, my husband and our family. Finally, we very fortunately fell pregnant with our third child. Because I had my cervix removed, I unfortunately had to undergo a further operation and have a cervical suture put in to keep the pregnancy in place. In itself this procedure carried risk, was uncomfortable and emotionally challenging. Tragically, due to the cervical suture, I developed an undiagnosed infection at 26 weeks pregnancy. It was an extremely traumatic and life‐threatening emergency situation for myself and my child. Our baby was born by emergency caesarean and died in my arms. I was extremely ill in intensive care. My husband thought he was going to lose both of us. The pain and grief of that loss and trauma is inexpressible.
Many doctors and nurses in hospital asked us if we would try again. Initially it seemed impossible to contemplate. Age was not on our side. We sought a lot of medical advice and decided that we would try one last round of IVF. It was extremely difficult to go through
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that again. We produced one viable embryo. Ultimately we received conflicting medical advice that a further pregnancy would be too risky. We were told that we should consider disposing of our embryo.
Here was the dark room with no doors and no windows. We couldn’t bear to dispose of our embryo. We felt surrogacy was our only option.
I have no sisters. I have no female cousins or relatives who have finished their families. I had two friends offer to carry the embryo. However the processes in Western Australia are unwieldy, relatively untested and uncertain. We did not have time on our hands. We had two other children who were meanwhile growing up. My husband and I felt very unsure about testing the boundaries of close friendship. Further,the law in Western Australia was such that we would have been required to adopt our biological child and the birth mother (with no biological connection) could change her mind about a misplaced (in my view) legal right to keep the child which she had not created but carried.
I am a lawyer and my husband and I both strongly felt that we wanted to consider a system with a strong legal framework protecting and supporting all participants and facilitating the process. We looked at cheap options overseas (India and the Ukraine) but only seriously considered the USA because of its long established frameworks and the experience of agencies involved. We chose to pursue surrogacy through an agency (rather than directly) for the same reasons – experience and established practices. We chose an agency with more than 30 years’ experience.
We were lucky that we could afford the costs which were significant.
We went through an involved psychological screening and matching process. We had detailed contracts drawn up by lawyers (our gestational carrier had independent representation) addressing the entire process and various possibilities.
We were extremely pleased with the support provided by the agency to both ourselves and our gestational carrier with ongoing contact with a psychologist for all parties and group meetings for our gestational carrier. We had no issues.
We obtained a pre‐birth order from a court based on affidavit evidence which accurately reflected the facts to date and named us as parents. On the basis of that document, we were also able to be named as parents on our child’s birth certificate.
We were extremely blessed that our journey went without a hitch. Our gestational carrier fell pregnant and had an easy pregnancy with a natural delivery. We went to the US for the transfer of our one embryo (which was shipped by biological courier), our 20 week ultrasound and the birth of our child. We stayed in hospital and had our own room. Our gestational carrier came and went as she pleased. She expressed for us for several weeks
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and then we returned to Australia.
Often there is a concern that the gestational carrier will somehow feel as if she is ‘giving away’ her baby. This was a question we asked our agency but it is not born out by research or experience. Surrogates have deeply considered why they wish to be surrogates and their connection with any child they carry. Our gestational carrier felt like she was giving us back our baby which she felt she had effectively been ‘babysitting.’ She said it was the biggest gift that she could ever imagine giving anyone and it was like 100 Christmases rolled into one. All that our surrogate wanted to do was bring a healthy baby into the world for us.
We have a happy, healthy child who brings untold joy to her siblings and immediate and extended family and all the people who accompanied us in our journey. We have a fantastic ongoing relationship with our gestational carrier, her husband and all of her children.
I believe that we can do beautiful life‐giving things for each other if we can just take the blinkers away and it is entirely possible to create new life‐enhancing types of relationships.
Submission 3
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Years trying to have a family?
10+ years to start family
Money spent
$200,000+
Personal impact
Looking to sell house and go to the US. Disconnect between friends and family.
My wife and I have spent 10 years trying to start our family. We started trying to have a family when we were both in our mid 20’s, and continued to do IVF cycle after IVF cycle, as each time we were given hope and encouraged to keep trying.
It is not lost on us that medical practitioners make large amounts of money from each IVF cycle, which makes their goal of making money disconnected with ours, which is to create a family in the least number of IVF attempts. I will be interested to see how many send this inquiry a submission. Hopefully I’m proved wrong!
We have endured ectopic pregnancies, miscarriages and countless amounts of money and time trying to start a family.
We will not give up, as it is something we want to do, no matter the cost.
We are now seriously considering moving to the US to start our family over there.

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Submission 4
My husband and I have been trying to have children for 10 years and we finally have a baby girl on the way via commercial surrogacy in America. We underwent 7 rounds of IVF in Australia with the clinics here repeatedly telling us it was numbers game and to keep trying. After 19 failed implantations we decided to try surrogacy. After researching various countries and clinics we decided on CSP in Los Angeles.
We were matched with the most incredible surrogate and the process has been seamless from beginning to now. One of our main concerns going into surrogacy was the treatment and psychological health of the surrogate. With CSP we have complete peace of mind that our surrogate is protected legally and supported emotionally and mentally. I feel very strongly about compensation for surrogate mothers as they are putting their families and themselves in what can turn out to be a very complex situation emotionally, mentally and medically. Without compensation and representation by agencies such as CSP it becomes a situation that could very easily turn out extremely complicated for all involved. Surrogates must be compensated for this amazing gift that they are providing people. There has to be something in it for the surrogate and their family. It’s ridiculous to think that technology has provided us with these opportunity and what’s holding it back is the narrow perspective of governments. Commercial surrogacy need to be introduced to Australia.
The United States have created a model that works.
The staff at CSP have been amazing and have made this process very easy for us. In situations like this it would be very difficult to feel comfortable without the support of the agency. We can relax and enjoy the last part of our journey without worrying about anything but the health of surrogate and baby. Without agencies such as CSP we would never have been able to fulfill our dream of having a family.