Ukrainian surrogacy nightmare continues for Australian couples, but aren’t we forgetting something?

Ukrainian surrogacy nightmare continues for Australian couples, but aren’t we forgetting something?

Last week we wrote about how stories of desperate couples trying to reach their surrogate babies in war-torn Ukraine underscored the ethical issues with the surrogacy industry itself, which exploits and harms women and children.

Academics Renate Klein and Helen Pringle have also written an excellent and thought-provoking piece titled ‘“Collateral damage”: The invasion of Ukraine reminds us of the cost of surrogacy, and who pays the price’.

Since then, more stories have emerged in Australia and overseas. One such story is that of Canberran couple Emma and Alex Micallef, who are among approximately 40 Australian couples with surrogacy arrangements in the Ukraine.

Following Ms Micallef’s experience with cervical cancer, the couple tried to fall pregnant over the next five years, trying everything from ‘altruistic surrogacy’ to more than a dozen cycles of IVF treatment, eventually resorting to a commercial surrogacy arrangement in Ukraine.

Since the invasion by Russia, the Micallefs’ surrogate has fled Ukraine to seek refuge in neighbouring Moldova and the couple has expressed frustration at the federal government for its lack of assistance in what they call an “impossible situation”.

“We haven’t had any assistance from DFAT (Department of Foreign Affairs and Trade), who I don’t think fully understand how many Australians are going to be born or have just been born in Ukraine or in neighbouring countries,” said Ms Micallef.

“We’ve managed to get our surrogate mum and her children out of where they live about 80km south of Kyiv and across the border to Moldova.”

Growing Families global director Sam Everingham, has said the situation for both the surrogate mothers and the couples had become increasingly complex, particularly when it comes to the issue of birth certificates. In Ukraine, both parents must be present at the child’s birth in order to obtain a birth certificate. In Poland and Moldova, parents cannot have their names on a surrogate child’s birth certificate, so they would not legally be recognised as the child’s parents under Australian law.

“At the moment the government is saying ‘don’t go to Ukraine’, but if they don’t go they won’t be able to get a birth certificate for the child,” said Mr Everingham.

“The current situation is absurd. There is a lack of guidance from DFAT and a lot of uncertainty for the surrogates and parents.”

Mr Micallef has said that without the Australian government’s support, the couple will remain trapped in a “terrible situation”: 

“Basically we’re facing a choice between risking the safety of Svetlana and our daughter by getting them to cross the border and have the child in Ukraine, or leaving them to stay in Moldova which means we won’t be legally recognised as parents in Australia,” Mr Micallef said, adding that they were not willing to risk anyone’s life over “a scrap of paper”. 

The Micallefs, and no doubt other couples in similar situations, are expressing anger at the Australian government for not being more supportive regarding the predicament they’ve found themselves in. But hold on a second – isn’t commercial surrogacy (a paid surrogacy arrangement) still illegal in Australia?

The website clarifies that, “All states and territories, except Northern Territory, have criminalised commercial surrogacy” and “It is illegal for residents of the ACT, NSW and QLD to enter into commercial surrogacy arrangements overseas. Doing so could lead to arrest and jail in Australia.” It acknowledges that commercial surrogacy is banned in various countries for many reasons, including the “[exploitation of] women”.

So why is it that these Ukrainian surrogacy stories are being reported on as if these arrangements were all above board and why is it that in the absence of war, so many such arrangements have been allowed to proceed in contravention of Australian law?

While care and support must be extended to the surrogate mothers and babies caught up in Ukraine’s current dire circumstances, this whole sorry saga shines a spotlight on the illegal practice of commercial surrogacy which both the Australian media and government appear to be turning a blind eye to.

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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