By Stephanie Bastiaan
This week, New South Wales is set to debate Independent MP Alex Greenwich’s Equality Legislation Amendment (LGBTIQA+) Bill 2023, a component of which seeks to decriminalise overseas commercial surrogacy. While altruistic surrogacy is legal throughout Australia, commercial surrogacy remains illegal (due to concerns regarding the exploitation of women and children), and in NSW, this includes procuring commercial surrogacy arrangements overseas. Greenwich has long been an advocate for surrogacy.
Bans on commercial surrogacy recognise that human beings are not commodities and that neither people (in this scenario, children), nor body parts and organs (in this scenario, women’s wombs), should be bought or traded for profit.
A more familiar term for this type of trading is human trafficking.
Just last month, the European Parliament, in conjunction with the Council of the European Union, introduced legislation that adds "the exploitation of surrogacy" to the European Union’s anti-human trafficking laws. Once passed, offenders face up to 5 years imprisonment and at least ten years imprisonment for aggravated offences. These legislative amendments are part of the European Commission’s four-year strategy to combat human trafficking, which also includes targeting industries that drive demand for trafficking, such as surrogacy, as well as protecting and empowering victims and increasing international cooperation. Member countries in the European Union will be required to pass legislation to enforce these new laws.
Proponents of surrogacy present it as a relatively uncomplicated issue that assists those who cannot have children to build families, including women who struggle with fertility, same-sex couples without the reproductive capacity to procreate, and those who want children without the inconvenience of pregnancy, in many cases for the sake of their career.
However, the reality is much more complicated. Although infertility is a heartbreaking and devastating diagnosis for couples, it does not justify the use of commercial surrogacy, given the human cost to both women and children.
Harm to the Child
‘All too often we forget the people most affected by surrogacy, the children who are ripped from their mothers at birth and sold to strangers.’ – Olivia Maurel, a child born from surrogacy.
‘I felt really guilty that this woman just had my baby and I take the baby, and then I go to another room. And you’re separated. I felt it’s such a transactional experience because it’s not about him.’ – Chloe Kardashian, commissioning parent.
These two quotes, one from the perspective of a child born via surrogacy and the other from a ‘commissioning parent’, capture the fundamental human rights violations that occur when a child is purchased through surrogacy. Very rarely are the rights and well-being of children properly considered when it comes to surrogacy.
Rather than being born free, children created in commercial surrogacy arrangements are born as purchased commercial commodities under the most distressing circumstances for a baby that will carry lifelong ramifications. This is why even in situations where the woman consents to be a surrogate, commercial surrogacy will always be synonymous with human trafficking. Children cannot consent to being bought or traded.
In ordinary circumstances, the role of a mother to a baby is threefold. Firstly, she is the biological mother with whom the child shares a genetic bond and heritage. Secondly, she is the birth mother, the first person a baby ever bonds with during its journey from conception to birth. Thirdly, she is the social mother who nurtures and raises the child into adulthood. The loss of one of these roles is usually seen as a tragedy in circumstances other than surrogacy, where one of these losses is imposed on the child by the commissioning adult(s).
In fact, in commercial surrogacy, all of these roles are tradable. The biological mother may have sold her eggs, while the birth mother may have rented out her womb. The social mother is optional, depending on the makeup of the commissioning parent or parents.
Under NSW law, puppies and kittens cannot be separated from their mothers for at least eight weeks after birth due to the distress and long-term effects it can have on their development. Yet when it comes to human babies, there is no such consideration. Once born, babies are handed over to the commissioning parents, shattering the mother-baby bond that is developed in the womb. One study on the impacts of early maternal separation found that stress can lead to an increased risk of instability, anxiety, depression and a range of other mental health issues for the child. Medical research shows maternal bonds play a vital role in a child’s life, including their brain development, cognitive function, and ability to form healthy attachments. Adults born via surrogacy arrangements are starting to share their struggles with feelings of abandonment, displacement and identity issues, such as anti-surrogacy advocate Olivia Maurel, who shared her story and perspective last year.
In ordinary situations where a child loses their mother after birth due to death or adoption, the child can find a pathway to healing, especially with the support of the community around them. When it comes to surrogacy, there is no way for a child to process their loss, as neither the medical industry nor the commissioning parents consider this loss a problem. If they did, it would bring into question the ethics of reproducing children in this way, regardless of whether the arrangement is commercial or altruistic.
Another risk to children in foreign surrogacy arrangements is abandonment, particularly in developing countries. Abandonment has happened in situations where there are issues such as disability, an unexpected twin, the breakdown of a relationship between the commissioning couple, or the wrong sperm has been used. These scenarios can result in the child becoming a ‘surrogate orphan’ and also stateless, particularly in countries like India or Ukraine where the surrogate mother is not recognised as a legal parent.
Surrogacy, an industry built on the exploitation of women
The increased health risks to both the surrogate and her baby are another aspect of surrogacy that rarely get a mention. One 2017 study found that a surrogate baby was more likely to be born prematurely and underweight compared to naturally conceived babies, while the surrogate was at greater risk of complications, including gestational diabetes, hypertension, placenta previa, and delivery via caesarean section. Women are also at a heightened risk of postpartum mental health issues, including postnatal depression. With these and other risks, along with the usual challenges that come with pregnancy, it is no surprise there is a shortage of altruistic surrogates in Australia.
Yet globally, the commercial surrogacy industry is growing at an exponential rate. Valued at $14 billion (USD) in 2022 it is on track to reach $129 billion (USD) by 2032.
The industry depends on a steady stream of healthy, fertile women with emotional resilience willing to provide their bodies for nine months of service only to hand over the child they have nurtured and bonded with to a stranger. A short supply of surrogates has driven up the cost of surrogacy in countries like the USA, where you can pay well over $150,000 (USD). Even altruistic surrogacy in Australia comes with a heavy price tag of around $70,000 (AUD) on average, which covers medical costs and legal fees. These costs can make developing regions a more enticing option, as the process can be much cheaper.
However, the exploitation of surrogates and crimes of human trafficking is well documented in these countries. Late last year, a popular clinic used by Australians in Greece made headlines after local authorities discovered trafficked women were being held in ‘prison-like conditions’.
Countries like India and Thailand have been accused of running ‘baby factories’ while in Eastern European countries such as Ukraine, the government refuses to investigate not only human trafficking but egg harvesting, too. Despite the war with Russia, surrogacy in Ukraine continues to thrive. The horrific conditions and risks faced by surrogates and their babies that are now being reported beg the question of why anyone would risk commissioning a child in a war-ravaged country where supplies and safety have been diminished. Perhaps the transactional nature of surrogacy deems these factors irrelevant to commissioning parents.
Proposed NSW reforms a step in the wrong direction
After reading all this, you might consider the solution to the harms of foreign commercial surrogacy is to decriminalise it in Australia. This is a bad idea for at least two reasons. Firstly, it will make Australia complicit in the trafficking of children who are paid for under surrogacy contracts. And secondly, creating an Australian market would increase the demand for surrogates that profiteers need to meet. Australia is already a known source and destination of human trafficking, and in fact, complaints of human trafficking increased by 15 per cent over the last year compared to 2021-22.
The proposed laws in NSW are a step in the wrong direction: the slippery slope to decriminalising commercial surrogacy in Australia. All Australian states, including NSW, should be proactively discouraging commercial surrogacy, as there is no safe or ethical way to regulate human trafficking.
Rather than weaken our laws by voting for Greenwich’s amendments, our legislators should be strengthening our laws to deter Australians from engaging in commercial surrogacy overseas.
It’s ironic that while the EU is cracking down on commercial surrogacy as a form of human trafficking, NSW will be debating a bill that will drive up demand.
But at the heart of the issue, we must remember it is never okay to traffic a person, no matter how young, nor forget that this is an industry that is physically and emotionally harmful to women and children and booming off the back of human exploitation.
Stephanie Bastiaan is a Research Fellow with Women’s Forum Australia
This article was originally published in the Spectator. Sign the petition saying NO to these harmful reforms.
Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.
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