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eLaw Journal: Murdoch University Electronic Journal of Law |
| Author: | Anita Stuhmcke School of Law, University of Western Sydney |
| Issue: | Volume 2, Number 3 (December 1995) |
1. Introduction
In the last decade, five Australian jurisdictions have introduced legislation
to regulate the practice of surrogate motherhood -
Victoria,[1] South
Australia,[2] Queensland,[3] Tasmania[4] and the Australian Capital
Territory[5]. While the legislation is
not
uniform, each jurisdiction distinguishes between the concepts of paid
and unpaid surrogacy. In the
majority of jurisdictions, the
legislation treats paid surrogacy more
punitively, attaching criminal sanctions to its practice while leaving
unpaid surrogacy unregulated.
In recent years, this distinction has become
increasingly marked. For example, in
Victoria in 1993 the Victorian Cabinet recommended
that unpaid surrogacy
be legalised[6] and the Australian Capital Territory legislature allowed
parties to an altruistic surrogacy
agreement to seek professional assistance in
relation to the formation of such an arrangement.[7]
This article questions this growing legislative perception that surrogate motherhood
falls into two identifiable categories - 'altruistic'
where no money is
paid to the surrogate mother for her "services" and 'commercial' where
money is paid. The article commences
with an outline of the practice of surrogate motherhood, it then analyses
the legislation which regulates the practice in each jurisdiction
and
evaluates the legislative categorisation of surrogacy through a comparison
of the objections to com mercial and altruistic surrogacy.
Finally, the ramifications which the legislative
distinction between commercial and altruistic surrogacy has for women,
reproduction,
parenthood and family are considered and legislative reform
is advocated.
2. The Practice of Surrogate Motherhood
In our society infertility has historically been seen as a problem which merits
treatment.[8] Surrogate motherhood provides some
couples with their only
hope of raising a child genetically related to at least one of them. Surrogate
motherhood describes a n arrangement
where a woman (the surrogate mother)
agrees to become pregnant and bear a child for another person or persons
(the commissioning
parents) to whom the custody of the child will be
transferred directly after birth.
Surrogate arrangements may be made with or without payment to the surrogate
mother. 'Commercial surrogacy' is the term used to describe
an agreement
where payment is made to the surrogate mother.
'Altruistic surrogacy' is the term used to describe the in formal
arrangements
where no money is paid to the surrogate mother. Such
altruistic agreements are often referred to in the literature as being
made
between friends and relatives.
The initial demand for surrogacy is likely to come from women, or
the part ners of women who are
physically incapable of pregnancy, the most
obvious candidates being women who have had a hysterectomy or a history of
spontaneous
abortion. Other medical conditions such as kidney disease or
multiple sclerosis[9] make pregnancy dan gerous and therefore may leave
a
woman infertile for practical purposes.[10] Further, it has been suggested
that some women may desire a surrogate to bear their
child for aesthetic
or career reasons.[11] In practice[12] two methods of surrogate motherho
od are employed:
A. A woman (the surrogate mother) provides her oocytes for in vivo fertilisation
for insemination by the sperm of a donor (usually
the commissioning
parent). This insemination may be
natural or artificial.[13] Upon birth, custody is surrendered to the s
perm
donor. This has been termed "partial" surrogacy since the
child is related to one of the commissioning parents - the biological
father and the surrogate mother.
This is the most common method of surrogate motherhood.[14]
B. A woman's ovum is fertilised in vitro, the embryo is transplanted into the
uterus of the surrogate mother and upon birth, the
child is surrendered to
the ovum donor. This procedure of
utilising in vitro fertilisation ("IVF") has been termed
"full"
sur rogacy since the commissioning parents may have
provided all the genetic material for the child. IVF surrogacy is comparatively
rare.[15] For example, the first recorded
birth in Australia took place in 1988.[16] Between 1989 and 1991 eleven
requests fo r IVF
surrogacy were made to the Monash IVF programme[17] and
in 1994 a failed attempt at such a procedure in Victoria was reported.[18]
It is only in the last 20 years that surrogate motherhood has increasingly become
an issue of national and international public debate.[19]
Factors such as
the growth of infertility in modern society,[20] coupled with the declining
number of children ava ilable for adoption,[21]
the development of the
surrogacy contract and commercial surrogacy agencies in the United States
in 1976[22] and the introduction
of new technologies such as IVF which can
be combined with surrogate motherhood, have resulted in in creasing publicity
and public
interest in the formation of such agreements between infertile
couples[23] and surrogate mothers. Although there has been much publicity
surrounding the practice of surrogacy the incidence of surrogate
motherhood in Australia is not known, although it has been estimated
that
between 1977 and 1987 "about 40 surrogate births would have occurred
in Australia."[24]
It is important to note that much of the language in this area has been criticised
and is used in this article only due to its widely
accepted usage. For example:
A. The term "surrogate mother" as applied to the gestating mother is
a misnomer since the social or commissioning parents
could equally be regarded
as surrogates as in most Australian jurisdictions the woman giving birth
to the child is deemed or presume
d at law to be the mother. Since a
"surrogate" according to the Macquarie Dictionary is a "substitute"
a woman
cannot be the surrogate mother of a child she bears.
B. The terms "partial" and "total" surrogacy reduce
motherhood to an equation of gametes contributed and presume
that
providing original genetic material makes one a mother, while nurturing an
embryo in one's body and giving birth does not.[25]
C. The terms "altruistic" and "commercial" surrogacy
contain ambiguity. Firstly, it is unclear as to when an
altruistic
arrangement becomes commercial - for example an arrangement may include
payment of the surrogate mother's medical, travel
and home-help expenses
yet remain classified as an altruistic arrangement. Secondly, the distinction between the
terms has been
questioned.[26] The use of the term "altruistic"
implies that these arrangements are done purely for love and are therefore
somehow more a cceptable than an arrangement entered into for commercial
reasons. However, the fact that the parties enter into a
surrogacy
agreement which provides for payment to the surrogate mother does not
necessarily mean that the motivation behind the agreement
is not altruistic. Similarly, the fact that there is no payment
does not necessarily imply that the motivation for surrogacy is
altruistic.[27] Finally, it has also been argued that such acts can never
be termed altruistic as the women who become surrogat e
mothers do this as
a result of a lack of self confidence and subordination.[28]
3. The current legislation
There have been 10 committees of inquiry in Australia into surrogacy and related
reproductive technologies.[29] All but one of these
committees[30] either
"expressed grave reservations about the practice or recommended that
it be prohibited".[31] It is
t herefore not surprising that the legislation
regulating surrogacy, although not uniform, does contain similarities. In particular
the legislation in each
jurisdiction:
A. prevents advertising, thus effectively reducing the spread of people to whom
surrogacy is available and preventing the emergence
in Australia of commercial
surrogacy agencies such as those which exist in the United States;[32] B.
renders surrogate arrangements
unenforceable, with the result that the
surrogate mother to either a commercial or an altruistic agreement cannot
be required to
relinquish custody of the child to the commissioning
parents;[33] and C. applies not only to the situation where a woman
becomes
pregnant pursuant to a surrogacy agreement but also to the situation
where a woman is already pregnant and then agrees to give the
child
away.[34] Additionally, the legislation distinguishes between the concepts
of altruistic and commercial surrogacy as explained
below.
3.1 Victoria
In Victoria, the Infertility (Medical Procedures) Act 1984 ("the
Act") renders both commercial and altruistic surrogacy arrangements
void and therefore unenforceable.[35] The Act
distinguishes between
commercial and altruistic surrogacy in that crimina l penalties are
imposed upon the parties to a commercial
surrogacy agreement[36] while
parties to an altruistic agreement are not penalised.[37]
Although altruistic surrogacy arrangements have not been specifically prohibited
by the Victorian legislation, the Act together with
other pieces of
legislation combine to render the successful completion of such an
arrangement difficult. For example, in relation
to IVF surrogacy, s13(3)(d)(i)
of the Act states that an IVF procedure must not be carried out unless the
recipient is "unlikely
to become pregnant as the result of a
procedure to which this section applies".
The strict interpretation of this se ction
means that the surrogate
mother must be infertile to receive IVF treatment and therefore precludes
fertile women from acting as surrogates.[38]
Further, if parties choose to
employ artificial insemination to achieve their desired ends they will run
into the unintended effect
of s 10C of the Status of Children (Amendment)
Act 1984 (Vic) which deems the resulting child of a surrogacy arrangement
to be that of the surrogate mother and her husband (if applicable)
while
denying the relationship betwe en the child and the commissioning sperm
donor.[39] As a consequence, the commissioning couple
must rely upon the
relevant adoption and guardianship and custody statutory provisions to
achieve a successful surrogacy agreement.
This becomes complicated b y the strict requirements of the Adoption
Act 1984 (Vic) which prohibits private adoption and discourages adoption
by relatives.[40] However, it is frequently suggested that it is
relatives
who are most likely to participate in an altruistic surrogacy
arrangement.[41]
The situation is further complicated because the distinction between commercial
and altruistic surrogacy is undefined in the legislation.
For example, in the case of an
'altruistic' surrogacy arrangement, should the woman who has agreed to be
the surroga te mother be
allowed health care costs, home help throughout
the pregnancy or, alternatively, no assistance whatsoever?
Section 30(2) of the Act states that a person shall not:
"(b) make, give or receive, or agree to make, give or receive, a payment or
reward for or in consideration of the making of
a contract, agreement or
arrangement under which a woman agrees to act as a surrogate mother; or (c)
receive or agree to receive
a payment or reward in consideration for acting
or agreeing to act as a surrogate mother."
On a literal interpretation, even compensation for medical expenses may be caught
under these provisions. On a broader
interpretation,
it may be argued that these provisions aim to prohibit the
payment for the use of reproductive services and thus payme nts not made
directly for such services may not be penalised under the Act. Indeed the Waller Report states that in
an altruistic surrogacy agreement
an arrangement that the surrogate
mother's "medical, hospital and travelling expenses be paid would not
result in [the arrangement]
being labelled as commercial".[42] However,
the legislation in its present form remains ambiguous on this point.
3.2 The Australian Capital Territory
In the Australian Capital Territory the Substitute Parent Agreements Act 1994
("the Act") renders substitute parent agreements[43]
void.[44] It is an
offence for anyone who does not intend to be a party to a substitute parent
agreement to procure anothe r person
to enter an agreement with a third
party.[45]
The Act clearly distinguishes between commercial substitute parent agreements
and "non-commercial substitute parent agreements".[46]
A "non-commercial"
or altruistic agreement includes those agreements under which the expenses
of the surrogate mother are
paid.[47] The Act distinguishes between
commercial and altruistic surrogacy by making it an offence for persons to
enter into a "commercial
substitute parent agreement"[48] while
leaving altruistic agreements without penalty. Additionally, if advertis
ing is made
with respect to a commercial substitute agreement the penalty
is a fine or a period of imprisonment or both. If the advertising
is made for the purposes of altruistic
surrogacy the penalty is a fine only.[49] Perhaps most importantly, the Ac
t further distinguishes
between commercial and altruistic surrogacy by
making it an offence for a person to knowingly provide any professional or
technical
services to a woman to facilitate a pregnancy with respect to
the former[50] while leaving the latt er unregulated.
In essence commercial surrogacy is considered a criminal act in the Australian
Capital Territory while altruistic surrogacy is allowed
to proceed. One reason for so doing was stated in
parliamentary debate by Mrs Carnell:
"Provided arrangements for non-commercial surrogacy are between people who know
each other well; who have a long standing relationship,
that is often sisters,
cousins etc; who trust each other and who have a clear commitment to each other's
well being; an d who have
the support of their families and who are
informed about the procedures and the consequences and who are willing to
participate,
in other words, it is their consent, such altruistic
surrogacy should be allowed to proceed".[51]
This is not to imply however that the Australian Capital Territory has explicitly
condoned such agreements. The Act
states that
altruistic surrogacy arrangements will be unenforceable in a
court of law. This means that while entering an altruistic surrog acy
agreement is not an offence, the agreement is legally ineffective and the
surrogate mother will be the legal mother as if no agreement
had been
made.[52] What is important to note however, is that the Act does
explicitly allow and, to an extent, enco urages the formation
of such
arrangements. The penalties for advertising
for altruistic surrogacy are not severe[53] and technical services may be
provided
to parties to such an arrangement, including medical services and
legal advice.
However, while the effect of the Act is to allow altruistic surrogacy agreements
to proceed, practically any such agreements will
face hurdles. More
specifically, the current law in the Australian Capital Territory indirectly
raises impediments to the rea lisation
of substitute parent agreements.[54]
For example, s 5(1) of the Artificial Conception Act 1985 (ACT) provides
that where a married
woman gives birth to a child as the result of
artificial conception (either artificial conception by donor or IVF ) with
the consent
of her husband, the donor of the gametes will have no legal
relationship with the child and the husband is presumed to be the father
of the child. Therefore the
commissioning parents will have no claim over the child in such an agreeme
nt. Additional impediments
arise following
the birth of the child when issues such as the names on the birth
certificate and adoption arise. For
example, under
s 19 of the Adoption Act 1993 (ACT) all adoption
applications are subject to review by an a pproved adoption agency before
a grant of adoption by the Court and
in any proceedings relating to a
child born from a surrogacy agreement "the welfare and interests of
the child born as a result
of a pregnancy that was the subject of the
agreement shall be regarded as the paramount consideration".[55]
3.3 South Australia
In South Australia a surrogacy contract[56] and a procuration contract[57] are
illegal and void.[58] The Family Relationships Act 1975 (SA) ("the Act")
distinguishes between altruistic and commercial agreements, making it an
offence to be involved in a commercial
surrogacy agreement,[59] while not
penalising parties to an altruistic surrogacy agreement. One reason for
this, as stated in parliamentary
debate by the Honourable R J Ritson,
is:[60]
"...one cannot legislate to prevent private agreements amongst people to arrange
for the pregnancy and birth of a child and
for a friend to have custody of
that child as if that person were the parent.
I guess that that will go on to a certain extent,
bu t we need to
prevent some of the distressing and unhappy litigation that has occurred
in other countries and prevent, in particular,
the transatlantic trade
which has occurred, where agencies in the United Kingdom have advertised
surrogacy services and pe ople from
North America have crossed to England
to take advantage of those services."
As in other jurisdictions, parties to an altruistic surrogacy agreement in South
Australia, face unintended obstacles to the successful
completion of such
an arrangement. For example, s 10(d)(1)
of the Act states that where a child is born to a married w oman as a
result of the artificial insemination by donor, and her husband has
consented to the procedure, the woman's husband is presumed to
be the
child's father. This means that even
if the commissioning couple produced the sperm and are therefore biol ogically
connected
to the child they will be prevented from asserting any right to
parenthood.
3.4 Queensland
In Queensland the major provisions of the Surrogate Parenthood Act 1988 (Qld)
("the Act") are identical with respect to
commercial and altruistic surrogacy
contracts. For example, a prescribed
contract is void,[61] the parties who enter into or offer
t o enter into a
prescribed contract may be liable for a fine, imprisonment or both[62] and
the same restrictions as to advertising
apply to both altruistic and
commercial surrogate contracts.[63] The only substantial difference which
appears in the legisl ation
is that in relation to commercial surrogacy
contracts there is an additional provision, s 3(1)( b) of the Act which
states:
"A person shall not make, give or receive or agree to make, give or receive
a payment or reward for or in consideration of -
(i) entering into a
prescribed contract; or (ii) a person agreeing to act as a surrogate parent
."
Although the legislation does not overtly distinguish between altruistic and
commercial surrogacy in the same manner as other jurisdictions
such as Victoria
and the Australian Capital Territory, it appears that such a distinction
will be read into the leg islation by the
Queensland courts. Queensland
is the only Australian jurisdiction which has witnessed a judgment on
surrogate motherhood. In this
judgment,
R v White heard before Black SM in Mossman Magistrate's court, the
defendant, White, a medical practitioner, was charged
with aiding or
abetting a party to enter a surrogacy arrangement.[64] The penalty for
such an offence is a fine, imprisonment or
both. The magistrate in
sentencing the defendant stated:
"there is not the slightest suggestion that you sought to gain or did gain personal
enrichment from these actions. There
could
be nothing, in my view, so abhorrent as trading in babies. Some might say not even abortion but
where babies become chattels t o
be sold at will. But I am satisfied that that was not your motivation. You seem to have acted very much with the
interests of another
person....at heart.
However, the law prohibits your activities...It is my view clearly
that a custodial sentence is not warranted
in the particular
circumstances."[65]
The judgment appears to distinguish between the concepts of commercial surrogacy
and corresponding ideas of profit or gain and altruistic
surrogacy and
notions of kindness and thoughtfulness viewing the former as worthy of
more severe punishment than the latter.
The
distinction is interesting as it assumes that personal
enrichment on the part of the defendant centres upon monetary reward and
ignores
any other motivations which may give personal gratification. For instance, in this case evidence was
led not only illustrating the
defendant's desire to assist another but
also that the defendant "was a person vehemently opposed to abortion"[66]
who
would presumably gain personal gratification from seeing pregnant
women agree to become surrogate mothers f or infertile women rather
than
have their foetus aborted.
3.5 Tasmania
In Tasmania both altruistic and commercial surrogacy contracts are void and
unenforceable.[67] The Surrogacy Contracts Act 1993 (Tas)
("the Act")
provides that "a person must not make or receive, or agree to make or
receive, a payment or reward in
rela tion to a surrogacy contract".[68] To
do so attracts a fine or imprisonment.
There is no corresponding provision for altruistic
contracts.[69]
In Tasmania, as in the other jurisdictions, successful completion of an altruistic
surrogacy agreement is made difficult through
the effect of legislation
which was not drafted with surrogate motherhood in mind. For example, adoption legislation in
Tasma nia
prohibits a person from entering into a private adoption
arrangement and a woman who gives birth to a child as a result of the
carrying
out of an artificial conception procedure is deemed to be the
mother of the child, whether or not the child is biol ogically hers.[70]
In Tasmania the Act:[71]
"...makes no distinction between commercial or non-commercial surrogacy contracts
with one important exception: the [Act] does
not penalise those parties
who enter into a non-commercial surrogacy.
The Government believes that the arguments against surrog
acy that
I previously stated apply equally to non-commercial or so-called
'altruistic surrogacy'. However the Government, in line
with the
recommendations of a joint meeting of Commonwealth and State ministers
responsible for Health and Social Welfare, d oes
not believe that the
legislation should penalise parties to this type of surrogacy
arrangement...The Government is confident that
this bill represents an
appropriate response to a practice that has the potential to threaten the
concept of marriage and family
and the role of women in society."
4. Is there a distinction between commercial and altruistic surrogacy?
The above statement by the Minister for Community Services, the Honourable Mr
Roger Groom in his Second Reading Speech points to
a dichotomy which exists
in the current legislation. If the same
objections apply to commercial surrogacy as to altruistic su rrogacy,
why
treat the practices differently?
It could be argued that this dichotomy in the legislative treatment of altruistic
and commercial surrogacy is a response to the demands
of society.[72]
Thus, commercial surrogacy is penalised more severely than altruistic
surrogacy as it is the payment o f a fee to
the surrogate mother which has
raised the most objections from society.[73] However, such an assertion is
difficult to maintain given
opinion polls which have been carried out on
the practice of surrogate motherhood.
For example, in May 1987, the NSW Law Reform
Commission conducted
an opinion poll[74] which found that 51% of Australians were not opposed
to surrogate motherhood. Of these
51%, 16% expressly approved of it, 33% of all respondents objected to
surrogate motherhood for married coup les, a small proportion
did not have
an opinion and 13% said that they would need to know more. Thus, over half
of the survey population could not find fault
with surrogacy. Further, the same poll showed that there
"is clear support among Australians for providing some form of
payment
to the surrogate mother.
Forty per cent considered that the surrogate mother should be paid
for her medical expenses plus a fee
agreed with the couple. A further 34%
considered she should receive payment for medical expen ses only. Only 17% thought that there
should be no
payment at all."[75]
Given that community consensus does not reflect current legislative directives
over how to deal with altruistic and commercial surrogacy,
the question
remains as to why a distinction between the practices has been enshrined
in legislation. From the extr acts from
parliamentary
debates in the Australian Capital Territory, South Australia
and Tasmania which appear above, there are at least three arguments
which
have been put forward to explain why the legislation distinguishes between
the practices:
A. the practice of altruistic surrogacy cannot be stopped therefore there is
little point passing legislation to regulate it;
B. altruistic surrogacy is more acceptable as it occurs between friends and
relatives rather than strangers (ie: commercial surrogacy
is potentially
more devastating for parties to such an agreement as friends and relatives
are more likely to have regard for each
others welfare); and
C. altruistic surrogacy does not threaten our perceptions of the role of women,
marriage and the family to the same degree as commercial
surrogacy.
The first argument, while possibly containing an element of truth, is a little
spurious. Such an argument can be put
forward to
prevent parliament legislating against any form of behaviour
which society deems to be undesirable. For example, incest canno t
be stopped therefore there is
little point passing legislation to regulate it. Obviously, this is a position which most of society
would
find unacceptable. Such an argument may
therefore be rejected as being inadequate in its explanation of legislativ
e failure
to prohibit altruistic surrogacy in the same manner as
commercial surrogacy.
The second and third arguments are more plausible. Together, these arguments pose the issue that the practices
of commercial and
altruistic surrogacy are firstly, fundamentally
different and secondly, that altruistic surrogacy is more acceptable than
com mercial
surrogacy. To evaluate this issue the arguments surrounding
the practices must be examined in order to determine whether the
objections
to the practice of commercial surrogacy also apply to
altruistic surrogacy.[76]
4.1 Consent
This argument, which objects to the practice of surrogacy, applies to both commercial
and altruistic surrogacy. It centres
around
the issue of a surrogate mother being fully informed of the
procedure she is about to go through in order that she can giv e
consent.
It has been argued that it is
impossible for a woman to give consent to the procedure of surrogate motherhood. This is based on
the assumption that a woman
cannot know more than nine months before a child is even conceived as to
how her feeli ngs will be towards
the child and towards relinquishing it
upon birth.[77] The legislation in each jurisdiction implicitly
acknowledges this point by
rendering all agreements void and
unenforceable, meaning that the commissioning parents to either a comm
ercial or an altruistic
surrogacy agreement cannot force a surrogate
mother to relinquish her child.
4.2 An unnatural practice This objection applies to both altruistic
and commercial surrogacy. It centres on the view that surrogacy
is
unnatural and therefore should not be condoned.[78] Perhaps the best
example of this type of argument is provided by the Vatican
- which has cond
emned surrogacy and all other non-conjugal reproductive arrangements as
sinful.[79] This has been the consistent
view of the Roman Catholic Church
since the nineteenth century, when new technologies of artificial
procreation were first experimentally
ap plied to humans.[80] The Church
states that its position is not a policy decision, nor a precept based on
outdated religious motives;
rather, it argues its position is a necessary
defence of human values. These values require that any activity separatin
g sex from
procreation be excluded as it is morally wrong. This stance implies that the sanctity of the
traditional family unit will be threatened
if a third party, such as a surrogate
mother, plays any role in donating or gestating a child.[81]
4.3 Undesirable Separation of Roles?
This objection also applies to both commercial and altruistic surrogacy. It
is based on the assertion that reproductive technology
is creating three
types of "mothers":[82]
a) the genetic mother who donates or sells her eggs[83]
b) the surrogate or gestational mother who carries the baby
c) the social mother who raises the child.
In essence this objection argues that the splitting of the construct of motherhood
into three roles may lead to the potential erosion
of the family
structure.[84] It is argued that inherently the destruction of a family
takes place due to the surrogate mo ther's
preconceived intent to abandon
the child to the social mother and it is questioned as to whether this end
of furthering one family
justifies the means of destroying another.[85]
This objection still fails to distinguish between the concepts of alt
ruistic and
commercial surrogacy.
4.4 Commodification of the Child
At first blush, this objection seems to relate only to commercial surrogacy.[86]
It suggests that the payment of a fee to the surrogate
mother injects an
element of commercialisation and potential exploitation into a sacred
event: the birth of a child.[8 7] However,
a further breakdown of this
objection demonstrates that arguments as to commodification also apply to
altruistic surrogacy arrangements.
4.4.1 Product Quality
An objection often raised with respect to the commodification of the child,
and therefore to commercial surrogacy in particular,
is that the introduction
of a market mechanism for acquiring a child fosters an expectation or
demand for product quality. Th e
commissioning couple, paying large sums of money to obtain a child, may be
reluctant to accept an imperfect child.
Indeed, as the
child may be biologically related to the surrogate
mother, the commissioning couple may attribute the defect to the surrog
ate's
genes or inadequate prenatal care.[88]
An example of this is the 1983 'Baby Doe' case. Mrs Judy Stiver, a Michigan
housewife, agreed to bear a child for Alexander Malahoff
and his wife for
a fee of $10,000. All went well until
the child was born, when it was discovered that he suffered from m
icrocephaly
- a condition whereby the child has an abnormally small head
and often turns out to be mentally retarded. Mr Malahoff no longer wanted
the child, and told the hospital to withhold treatment - Mrs Stiver also
rejected the child, saying that the re had been no maternal
bonding. The
hospital went to court and won permission to care for the child and the
Michigan Department of Social Services fostered
the child out.[89]
This was not the end of the matter, as Malahoff asserted that he could not be
the father. Mr Malahoff and Mr Stiver
then underwent
blood tests to establish paternity before appearing on the
Phil Donahue television talk show to discuss the situation - whe re it
was
dramatically revealed that Mr Stiver was in fact the father. It emerged that while Mrs Stiver was contractually
obliged to abstain
from intercourse for some time after insemination, she
had not received any instruction about intercourse prior to
insemination.[90]
The Stivers accepted that the child was their own. Mr Malahoff reacted by suing Stiver for not producing the
child he contracted
for and the Stivers countered by suing their doctor,
lawyer and psychiatrist for not advising them properly about marital sex
.
They also sued Malahoff for invading their
privacy by making the matter public and alleged that the child's illness
was caused by
a virus transmitted in Malahoff's sperm.[91]
As Singer and Wells[92] point out, many people would consider that such an episode
provides sufficient grounds for prohibiting commercial
surrogacy. These
grounds are based firstly, upon the assumption that children will come to
be treated as consumer go ods and secondly,
that surrogacy arrangements
will increase the risk that biological parents will consider it acceptable
to abandon less than perfect
infants after they are born.[93] Krimmel [94]
suggests that such a rejection is more likely to occur beca use the
commissioning parents
contract not for any child; but a certain type of
child - one which is value for money.
At issue is the question of whether the parties to a commercial surrogacy contract
are more likely to reject an impaired child than
parties to an altruistic
surrogacy contract. Arguably, this objection as to product quality applies
to both commercial and altruistic
surrogacy. Indeed, it has been suggested
that in altruistic surrogacy and commercial surrogacy, the child is
"treated as a commodity
to be bargained, whether for money or love or
loyalty to another".[95] Further, there is nothing in a commerci al
surrogacy
arrangement which increases the possibility of rejecting an impaired
child. In other words, it is the impaired condition and not
the circumstances
of the conception such as whether the child was a product of a commercial
or an altruistic surr ogacy arrangement
which raises problems. Indeed, in both an altruistic and a
commercial surrogacy agreement there is an increased risk that the
commissioning
parents will reject a disabled child. This is because disputes may arise
concerning genetic def ects on the part of the surrogate
mother or
allegations that the surrogate mother failed to take adequate prenatal
care. Such arguments are separate issues from the
payment of a fee.
4.4.2 Positive Eugenics
The next objection is that surrogate motherhood may lead to an exercise in positive
eugenics. This suggests that the market
mechanism
which exists in commercial surrogacy will lead to surrogates
being selected for the positive attributes they offer, that "tall
surrogates with classic profiles and straight teeth might command higher
prices for their goods than might short, swarthy surrogates
with crooked
noses and overbites".[96] Kowall[97] points to the "Surrogate
Mother Spring Directory" produced by th
e Bioethics Foundation Inc.
where potential surrogates offer photos, tell their height and weight,
IQ,[98] college grade point average
and language skills. Noel Keane, in his book The Surrogate
Mother,[99] gives an example of "Joseph" who wanted to cho
ose the
sex of his child by using a surrogate mother and a sperm splitting procedure.[100]
However, such an argument may apply equally to altruistic surrogacy. An infertile couple may apply the same
principles when no payment
is involved to a surrogate mother. Terese MacFadden, a surrogate mother who was unable
to relinquish her child, talks about the
infertile couple she desired to
help advertising for a "surrogate mother who was attractive, intelligent
and who had at least
one child to prove her fertility."[101] Indeed,
it has also been argued that the issue of positive eugenics, no matter how
alarming,[102]
is separate to that of surrogate motherhood. After all,
the decision to marry a particular person may be based on similar
preferences
as to physical characteristics.
Also, it is no less likely that a fertile married couple or partie
s to an altruistic surrogacy
arrangement would employ a sperm splitting
procedure (without a surrogate) to predetermine the sex of their
child.[103]
4.4.3 A Means to an End
This objection is centred around the argument that rather than focusing on the
needs of the child, the surrogacy contract exists
primarily to satisfy the
psychic and financial needs of adult parties.[104] The surrogate mother is
thus viewed as desiring t o earn
a fee, the infertile couple as wanting a
child for their own ends.
Arguably, this objection applies to altruistic as well as commercial surrogacy. One of the few empirical studies to be
carried out
on motivations of surrogate mothers found that the reasons why
women undertake to be surrogate mothers are complex. The fin dings
disproved that surrogate mothers are desperate women who are only after
money. Parker presents data on 125 women who applied to
be surrogate
mothers. The findings were that of the 89% of women who said a fee was a
necessary condition, it was neve r a totally
sufficient reason for being a
surrogate mother - it was accompanied by the complementary factors of (i)
the perceived degree of enjoyment
and desire to be pregnant and (ii) the perception
that the advantages of relinquishment outweighed the di sadvantages. For example,
35%[105] of applicants who had
had a previous abortion or who had given up a child to adoption wanted to
become surrogates in order
to resolve their guilty feelings or deal with
their unresolved loss by going through the process of losing a child
again.[106] Thus
some candidates for surrogate motherhood seem not only to
be motivated by very real financial need but also to be influenced by traditional
role expectations about the importance of pregnancy and motherhood in
women's lives.[107]
4.4.4 Baby-Selling
This objection is based on the premise that the payment of a fee to the surrogate
mother constitutes baby-selling.[108] The Waller
Report [109] condemned
such arrangements as "agreements for the sale and purchase of a child
...... the buying and selling of
children has been condemned and proscribed
for generations. It should not be
allowed to reappear".
Such an argument is inapplicable to altruistic surrogacy, but interestingly
has also been rejected by the proponents of surrogate
motherhood as
applying to commercial surrogacy. The
reasons for this position were succinctly put by Judge Sorkow in Baby M .[110]
Judge Sorkow reasoned that if a biological father paid the surrogate for
her "willingness to be impregnated and carry his child
to term. At birth the father does not purchase
the child. It is his own biological
genetically related child. He ca
nnot purchase
what is already his."[111] The judge characterised the
contract as a bargain for "totally personal service".[112]
Judge Sorkow's reasoning embodies two arguments that proponents of surrogate
motherhood put forward against surrogacy as baby-selling.
These are firstly, that a surrogate
arrangement is a pre-conception contract. This means that the child has
always bee n intended
to be in the custody of the commissioning
couple. Consequently, it cannot be a
baby-selling contract, as in such a contract a mother
who would ordinarily
keep a child is induced by money to relinquish custody. Secondly, as the commissioning f ather
makes a genetic
contribution to the child, he is a natural parent. It is
therefore argued that a natural parent cannot purchase a right in the thing
in which he already holds an interest - parenthood.[113] Further, payments
made to the surrogate m other are viewed, by proponents
of surrogacy, as
compensation for services rendered and not as a fee for selling the
baby.[114]
However, even if the objection that commercial surrogacy constitutes baby selling
is accepted as legitimate, it can be argued that
this objection also
applies to altruistic surrogacy. This
is because, in surrogate motherhood a child is conceived to be g iven
away. Thus, for whatever reason the child is created - for love or for
money - ultimately the child is treated as a commodity to
be transferred
to someone else.
4.4.5 Psycho-social well being of the child
A further important objection to commercial surrogacy is the psychological effects
the surrogacy arrangement may have on the child.[115]
An example of this
is the concern for how the child may be affected by learning that it's
gestating mother conceived and carried
it with the deliberate intention of
giving it up to someone else.[116] Other concerns include the emotional
damage which may result
from separation from the carrying and birth mother
just after birth. Other difficulties
include what to put on the birth certificate;
to telling the child of its
origins - and the fact that the child was carried for a fee in the case of
commercial surrogacy. Most
of the psychological risks to the child stem
from the separation of genetic and gestational parentho od from social
parenting and
would therefore seem to apply equally to commercial and
altruistic surrogate motherhood.
4.5 Commodification of Parenthood
This objection is often assumed to apply solely to commercial surrogacy. It
focuses upon the particular services provided by the
surrogate mother and
maintains that surrogacy fosters a "commodification" of parenthood. [117]
That is, through creating
a ma rket for gestational and genetic services,
surrogate motherhood treats procreation as a tradeable commodity. The fear is that
reproduction which involves
technological assistance, money, arms-length arrangements between
strangers, and transfers of reprod
uctive services results in
commodification and the devaluation of parenthood.[118] However, as was
the case with objections based
upon the commodification of children, a
closer examination of this objection reveals arguments equally applicable
to both co mmercial
and altruistic surrogacy arrangements.
4.5.1 Exploitation of Poor Women
In Surrogate Parenting Associates v Cth ex rel Armstrong[119] the dissent
of Wintersheimer J noted the possible exploitation of "financially
needy
women as a public policy consideration that the court should have considered". This dissent is based on t he fear that
upper and middle class couples offering money to lower income surrogates
will exploit their reproductive capabilities and depreciate
their worth as
human beings.[120] Perhaps the more alarming feature of this argument is
the prediction made by John Stehura, President
of the Bioethics Foundation
Inc., that commissioning couples will be able to recruit women in Third
World countries at a fraction
of the going rate.[121]
Arguably, the same objections can be applied to altruistic surrogacy. Within
a family situation for example the probability is that
those with less
power among the family members may be the ones pressurised towards altruism.[122]
Stainsby gives the exam ple of
Alejandra Munoz, a poor illiterate Mexican
woman, who was brought illegally to the US on the understanding that when
she became pregnant
for her infertile cousin the embryo would be flushed
out and transferred to this cousin. On threatening
to hav e an abortion when
told she was obliged to continue the pregnancy,
her relatives kept her under house confinement, threatening to expose her
as an illegal
alien.[123]
Additionally, it has been argued that the payment of a large fee makes it less
exploitative and the most oppressive contracts are
the low paying ones.[124]
If this argument is accepted, it may follow that the most oppressive
results of all is to allow su rrogacy
but prohibit the payment of a
fee. This is due to the argument that
such a result will fit our tradition of non-compensation for
women's
work.[125]
Support for this argument can be derived from the decision of the Supreme court
in Baby M. The court stated that
surrogacy was "potentially
degrading to women".[126] The court
went on to hold that surrogacy arrangements would be acceptable only if
the y did not involve
the payment of a fee - in other words altruistic
surrogacy was seen as acceptable. Critics of this decision, such as
Shultz[127]
find the court's decision disturbing. They point out that the court stated that
the practice of surrogac y was objectionable since
it ignores fundamental
factors such as the fitness of the commissioning couple and the best
interests of the child. Yet the
court
held that it would not invalidate the practice if the surrogate was
not paid.[128] While the cour t may have believed that eliminating
the
payment of a fee would end surrogacy,[129] it did not explicitly state
this. It would thus seem that the court
genuinely believed
that altruistic surrogacy is acceptable, that the
bearing of a child for another is not problematic and that payment is the
real
concern, rather than the range of other matters which were
raised. Thus, Shultz states that
the removal of the court's objections
to the practice itself, "smacks
all too familiarly of the notion that while me n get paid for their
efforts, skills and services
[sperm are among the things for which men get
paid] women, being women, should do their women-things out of purity of
heart and sentiment".[130]
Further, it has been suggested that this
is a direct conse quence of women's consignment to the private sphere; it
seems money is
only the currency of the public sphere.[131]
There is also the argument that the singling out of sexual and reproductive
capacities as unacceptable commercial services may reinforce
stereotypes
that define women primarily by those capacities.[132] This argument
demands that surrogacy be evaluated i n the wider
context of women's
political inequality. In this context,
Radin[133] has suggested that whether surrogacy is commercial or altruistic
may be an ironic self deception.
That is, surrogates may feel they are fulfilling their womanhood by
produc ing a baby for someone
else, although they may be just reinforcing
oppressive gender roles. Radin argues
that such a result may also be applied to the
infertile woman who may
believe that it is her duty to raise her partners genetic offspring
instead of adopting or having any children
at all.[134] Such women may
have conflicts with their partners that they cannot acknowledge or a kind
of false consciousness or guilt
about being unable to bear the genetic
child her husband desires.
Finally, altruistic surrogacy has been viewed as exploiting women as it builds
upon societies expectations of women as altruistic.
In other words, women
who are "normal" are supposed to be giving, selfless and self sacrificing,
even the term "altruistic"
surrogacy implies that the practice is a positive and constructive
one.[135]
4.5.2 Psychological Harm
This objection applies to both altruistic and commercial surrogacy.[136] It
maintains that surrogacy arrangements treat the surrogate
mother as an emotionless
vessel - a breeding machine and less than human.[137] The real concern
lies with the psychologi cal harm
which relinquishment of the child may
cause to the surrogate mother.[138] It has been suggested that a mother
develops not only physical
but also strong emotional ties to the child she
carries (referred to as "bonding") - separation from the chil d is
thus
causes psychological harm and emotional trauma to both mother and child.
Indeed, in a comprehensive survey of women who had given
up their children
for adoption, the majority felt an overwhelming sense of loss for periods
of up to 30 years.[139] This has been
said to be analogous to the outcome
of surrogacy.[140]
4.5.3 Emotional Exploitation
This objection centres on the possible emotional exploitation of the surrogate
mother.[141] It suggests that a form of exploitation
arises when one party
to the transaction is orientated toward the exchange of "gift" values,
while the other party operates
in accordance with the norms of the market
exchange of commodities.[142] This objection applies to both commercial
and altruistic
surrogacy.
In a surrogacy agreement the surrogate mother gives the ultimate gift. Initially,
she gives the gift of her child; she then gives
the gift of the status of
mother to another woman and finally, she gives the couple the status of
family.[143] As Sappideen has pointed
out, gift relationships traditionally
give rise to reciprocal obligations[144] where three sets of norms
operate: obligations to
give, to receive and to repay in equal value. Sappideen points out that in the area of
kidney donations these n orms have operated
with adverse consequences. Firstly, in relation to the obligation
to give, subtle pressures may be brought on a family member to
donate his
or her kidney; secondly a dying recipient was not absolutely free to
reject the gift as refusal implied rejection of the
donor and thirdly, the
donee may be left with a sense of a continuing obligation to the donor and
the donor tends to exhibit a proprietary
interest in the conduct and the
life of the recipient.[145]
Further, the tacit acceptance of altruistic surrogacy and the contrast it is
held in relation to commercial surrogacy is based on
the assumption that
families and friends base decisions such as bearing a child for a family
member on grounds where all part ies
are equal and with no pressure applying
from other family members. Arguably this is not the case as a woman can be
physically, financially,
or more probably, emotionally coerced to assist
an infertile sister or friend. If she
has agreed to bear the c hild, family dynamics
may make it impossible for her
to keep the child if she so desires - the loss of her family as
retribution may be too much for her
to give up.[146] In other words it may
be easier for a commercial surrogate mother to cancel the cont ract and
return any monies
received than it is for a surrogate mother to withhold
the child from a relative. Thus,
commentators suggest that such emotional
pressure is more likely to occur
in an altruistic arrangement than a commercial one[147] whereas "
[p]reviously attention has
been focused on the economic pressures brought
to bear in commercially based surrogacy; more recently the potential for
the equally
forceful emotional pressures brought to bear on women in
so-called altruistic intra-familial sur rogacy has been revealed."[148]
Elizabeth Kane, America's first surrogate, who has since identified her
own altruism as stemming from "low self esteem",
once commented
that Maggie Kirkman (a commissioning mother) was more concerned about her
unborn baby than her surrogate sister when
the latter began to haemorrhage.[149]
As Stainsby has explained:
"The repercussions [of refusing to relinquish a child] would be particularly
painful in an altruistic surrogacy situation.
It is here that a decision to keep or relinquish the child can cut deep
into a surrogate woman's most intimate family ties and supp
ort systems.
(If the child is disabled in any way neither the surrogate nor the
commissioning parents may wish to keep it). In a
commercial surrogacy situation a surrogate can still
have her family supports. In an
altruistic surrogacy one's kith and kin can
become one's
accusers."[150]
5. Why is there a legislative distinction between altruistic and commercial
surrogacy?
From the above analysis, it appears that there are serious and disturbing objections
to the practice of surrogacy which apply equally
to both commercial and
altruistic surrogacy arrangements.
Given that this is the case, it becomes difficult to explain w hy
the
majority of jurisdictions have enacted legislation which treats
commercial surrogacy as a criminal offence while leaving altruistic
surrogacy unregulated. Such legislative intervention
in surrogacy arrangements allows an individual to utilise surr ogate
motherhood
as a form of procreation only within these state controlled and
defined parameters. While such
legislative intervention affords
the individuals concerned a measure of
protection from possible harm, the underlying assumption seems to be that
there is a particular
category of surrogate motherhood that as a matter of
policy, is better for the individuals involved, or for society or
both.[151]
Therefore, commercial surrogacy is treated more punitively than
altruistic surrogacy by legislatu res as it is considered a less
desirable
form of behaviour. Conversely, altruistic surrogacy is perceived as more
palatable to society, as posing less danger to
the parties involved in the
arrangement and as conforming more closely to the convictions we hold
surrounding reproduction.
Reproduction, parenthood and family are matters about which most people hold
deep convictions - convictions which are often based
on a certain theological
or moral persuasion.[152] Traditionally, these convictions reflect a
socially constructed paradigm of a
'nuclear family' where reproduction
takes place within a permanent relationship between one man and one woman
to the exclusion of
all others. This relationship has traditionally been
considered to be mysterious, sacred and personal. Consequently, th ere is
ambivalence
about or discomfort with methods of human reproduction which
depart from this traditional and 'natural' process of creating human
life. One such method of human
reproduction which directly challenges traditional convictions concerning
reproduction and the formation
of a family is surrogate motherhood.
Surrogate motherhood, which has at its essence the deliberate creation of
a child for the purpose
of surrendering the child upon birth to the care
of another represents a "striking depart ure from our collective
accumulative
experience"[153] and thus contravenes many of the
normative assumptions such as love, parenthood and nature which surround
the
traditional paradigm of family formation. Given that surrogate motherhood departs from rep roductive
mores it is not surprising
that current legislation displays a distinct
distaste for the practice of surrogacy and of commercial surrogacy in
particular.
This pattern of the state rejecting forms of reproduction which depart from
the traditional nuclear family and reinforcing traditional
norms regarding
reproduction and the family is further illustrated through intervention by
the state in another form of artificial
reproduction - IVF. In the three
Australian jurisdictions where legislation has been enacted governing
access to IVF programs, the
practice has been assimilated as closely as
possible to the conventional norm of the family. In South Australia the Reproductive
Technology Act 1988 limits access to married infertile couples or de facto
heterosexual couples who have lived together for five
years or those whose
children are likely to have a genetic disorder. In Victoria the Infertility (Medica l Procedures) Act 1984
allows artificial fertilisation procedures only to be carried out on a
married woman who is unlikely to become pregnant or whose
child may inherit
an 'undesirable' genetic trait or de facto heterosexual couples if they
were in a r elationship before the section
of the Act commenced. In Western Australia the Human
Reproductive Technology Act 1991 allows only infertile married couples or
heterosexual de facto couples who have lived together for five years or
who are likely to
tran smit a genetic defect to be treated with IVF. Thus the outcome is that persons or families
who do not come within the traditional
parameters of the family, such as
lesbian couples, are excluded from creating a family through these
means. Again with prac tices
such
as artificial insemination by donor ("AID"), legislation[154]
allows only married women or women in a de facto relationship
to be
inseminated with the end result being that the third party donor simply
"disappears" from the equation and the wo
man's husband becomes
the legal father.
6. What is the effect of failing to
regulate altruistic surrogacy?
One consequence of the law's defining of the parameters with regard to IVF and
artificial insemination is that these practices are
recognised and accepted
as legitimate by the state.[155] A similar implication exists in the
legislation which exists with respect
to altruistic surrogacy. That is, the refusal to explicitly ban
altruistic surrogacy in legislation implies a tacit acceptance and
acknowledgment of its practice.[156] Therefore, through legislative
inaction altruistic surrogacy, an unconventio nal form of procreation,
has
been implicitly accepted as fitting into traditional structures of women's
role in society, reproduction and family.
The implied legislative acceptance of surrogacy without payment reinforces dominant
values and social aims regarding the social unit.
In essence these values are that it is inappropriate to mix
love and intimacy with cash and commerce but that it is appr opriate
and
acceptable to undertake actions out of generosity and feeling. Cash and commerce, which are perceived
as are seen as being the
domain of commercial surrogacy, involve self
interest; human reproduction is seen as principally a matter of unself ish
and noble
behaviour.[157] Thus, altruistic surrogacy, which does not
involve money, fits society's perception of human reproduction as a noble
and selfless act.
What the legislation then implies is that it is not the idea of having third
parties produce babies for infertile couples which is
unacceptable, but
rather the commercial nature of the enterprise and in particular the payment
to the woman for producing a baby
she does not plan to keep. As the
arguments surrounding the practice illustrate, this assumption that altruistic
surrogacy is different
from commercial surrogacy is questionable. Indeed, such a distinction may have
unforeseen and undesirable conseq uences, as Raymond
has argued:
"Validating altruistic surrogacy on the level of public policy leaves intact
the image of a woman as a reproductive conduit
- someone through whom
someone passes. The woman used as a
conduit for someone else's procreative purposes, most evident in the
ca se
of surrogacy, becomes a mere instrument in reproductive exchanges, an
incidental incubator detached from the total fabric of
social, affective,
and moral meanings associated with procreation."[158]
7. A Need for Legislative Reform
The legislation which has been passed to regulate the practice of surrogate
motherhood distinguishes between the practices of commercial
and altruistic
surrogacy. Thus, this legislation has
created two categories of surrogate motherhood. This legislative dichotomy
is undesirable for the following reasons:
A. It leaves parties to altruistic surrogacy agreements uncertain of the relevant
law. While the legislation provides that such agreements
are unenforceable,
they have not been explicitly prohibited by the state.
B. The creation of two categories of surrogate motherhood and the concomitant
failure of legislatures to either clearly condone or
reject altruistic
surrogacy reinforces traditional stereotypes of reproduction, women and
the family. These stereotypes view the
labour of women and of the
surrogate mother as a noble, selfless, labour of love whose altruistic acts
should be permitted and encouraged.[159]
Arguably, if this is the desired
outcome, such arrangements should be state sanctioned and state protecte
d.
C. It ignores the fact that many of the same objections which apply to commercial
surrogacy apply equally to altruistic surrogacy.
D. It provides a
"window of opportunity" which has becoming increasingly utilised to promote
altruistic surrogacy arrangements.[160]
The legislative distinction of surrogate motherhood falling into two neat categories
of altruistic and commercial should be viewed
with caution. While it is
appealing to enact legislation which adheres to traditional notions of
love and self sacrifice in relation
to child bearing, in reality many of
the objections attributed to commercial surrogacy are equally applicable
to altruistic surrogacy
arrangements. Further, the creation of legislative
categories for surrogate motherhood may have unforeseen conse quences for
women,
reproduction and family. As surrogate motherhood has traditionally
been the subject of polarised views, legislative reform to remove
the
dichotomy between commercial and altruistic surrogacy may not meet
community consensus. Surrogacy r emains a practice which is
alternatively
viewed as a solution to an important social problem characterised by love
and self-sacrifice or as a threat to society's
moral fabric embodying
exploitation and commodification.[161] It appears however that regardl ess
of which side of this debate is
taken the current legislative distinction
between the practices of commercial and altruistic surrogacy is, at this
stage, undesirable
and untenable.
NOTES
[1] Infertility (Medical Procedures) Act 1984 (Vic) s 30.
[2] Family Relationships Act 1975 (SA) as amended by the Family Relationships
Act Amendment Act 1988 (SA).
[3] Surrogate Parenthood Act 1988 (Qld).
[4] Surrogacy Contracts Act 1993 (Tas).
[5] Substitute Parent Agreements Act 1994 (ACT) and the Substitute Parent
Agreements (Consequential Amendments) Act 1994 (ACT).
[6] "Kennett Drops Surrogacy Plan" The Australian, April 27,
1995; M Carter, "Victoria -
The Surrogacy State"
(1993) 36 Health Issues 12; W Weeks, "Will
Victoria also 'Proceed with Care' in relation to Reproductive Technology"
(1994)
38 Health Issu es 35. The
proposal was to amend the Infertility (Medical Procedures) Act 1984 to
allow fertile women to participate in the IVF program as part of
'voluntary' surrogacy arrangements.
At the time of writing,
the proposal had lapsed.
[7] Substitute Parent Agreements Act 1994 (ACT) s 8 and the Substitute Parent
Agreements (Consequential Amendments) Act 1994 (ACT).
[8] The development of fertility clinics began in Sydney in 1938, see C W Lloyd,
"The Development of Infertility Treatment in
Australia" (1991) 31(3)
Australian and New Zealand Journal of Obstetrics and Gynaecology 254. As to the development of inferti
lity
treatments more generally see N Pfeffer, The Stork and the Syringe: A
Political History of Reproductive Medicine, Polity Press,
London, 1993
[9] See In the Matter of Baby M (1988) 537 A.2d 1227, where Mrs Stern the
commissioning mother was suffering from multiple sclerosis.
[10] L Haberfield, Surrogate Motherhood in Victoria: What Now for Altruistic
Surrogacy? (1988) Unpublished Paper, Monash University,
37.
[11] P Singer & D Wells, The Reproduction Revolution: New Ways of Making Babies,
Oxford University Press, London, 1984 , 113.
[12] There are further theoretical possibilities of fertilisation such as Gamete
Intra Fallopian Transfer (GIFT) but there are no
records of such procedures
being used in surrogacy arrangements.
[13] J Leeton,"The Current Status of IVF Surrogacy in Australia"
(1991) 31(3) Australian & New Zealand Journal of Obstetrics
and
Gynaecology 260. Surrogacy can be achieved with no more technology than a
turkey baster see J Areen, "Baby M Reconsidered"
(1988) 76 Georgetown
Law Journal 5, 1741.
[14] In the last 20 years in the United States over 1 000 births using this
method have been reported see J Leeton, ibid, 260.
[15] L Haberfield, op cit, n 10, 37.
[16] This was the birth of Alice Kirkman. [17] J Leeton, op cit, n
13, 261.
[18] J Leeton & K Dawson "A Case of Attempted IVF Surrogacy in
Victoria: Breaking the Law or Breaking the Deadlock?"
(1994) 34(5) Australian
& New Zealand Journal of Obstretics & Gynaecology 586.
[19] Surrogate motherhood is often grouped with other forms of recent developments
in reproductive technology in a category called
"artificial conception". The practice of surrogacy is however,
neither a new development in human reproduction nor is
it ne cessarily
technological. Possibly the first recorded fertility test and act of
surrogacy occurred in 1913 BC when Sarai sent
Hagar, her handmaid to bear
a child for Abraham: see L W Cox, "The Development of Infertility
Treatment in Australia" (1991)
31(3) Australian & New Zealan d
Journal of Obstretics and Gynaecology 254 and Genesis 16:2.
[20] M Bracher & G Santow, "Fertility Desires and Fertility
Outcomes" (1991) Journal of the Australian Population Association
1,
33. It has been suggested that as
many as one couple in six are involuntarily childless, figures which
represent a threefol d
increase in infertility in the last 20 years D
Wallis, "The New Origins of Life" Time September 10, 1984, 46.
[21] D R C Chalmers, "No Primrose Path" (1989) 7 Medicine and the Law
1 at 2. In Australia the number of
children available
for adoption dropped from 9 798 in 1971 - 71 to 3 072
in 1982-83. In NSW the number of placements
of adopted children in the fi
nancial years: 1986-87 was 112; 1987-88 was
86; 1988-89 was 89; 1989-90 was 63; 1990-91 was 54; 1991-92 was 54;
1992-93 was 48; 1993-94
was 44. This is
due largely to single parent families becoming the norm and unmarried
mothers not placing their childr en up for
adoption.
[22] M A Field, Surrogate Motherhood, Harvard University Press, Cambridge
Mass., 1988. For an example of a
'typical' surrogacy contract
see K M Brophy, "A Surrogate Mother
Contract to Bear a Child" (1981-82) 20 Journal of Family Law at 263 -
291.
[23] The term "infertile couples" which is often used in the
literature in this area seems to be restricted to married
heterosexual
couples.
[24] M Charlesworth cited in ACT Attorney General's Department Discussion Paper
Surrogacy Agreements in the ACT , Canberra, 1993,
5.
[25] J Wright "Wombs for Rent" (1990) 116 Australian Left Review 12.
[26] See for example J Scutt "Whose Surrogate? "Surrogacy"
Ethics and the Law" (1991) Surrogacy - In Whose Interest?
Proceedings
of National Conference on Surrogacy, Mission of St James and St John, M
Meggitt (Ed), 122.
[27] National Bioethics Consultative Committee, Surrogacy Report 1, 1990,
8.
[28] E S Anderson "Is Women's Labor A Commodity" (1990) 19(1) Philosophy &
Public Affairs 86.
[29] Family Law Council, Creating Children: A Uniform Approach to the Law and
Practice of Reproductive Technology in Australia AGPS
Canberra 1985; Australian
Health Ministers Advisory Council Reproductive Technology Working Group
report considered by the Joint
Meeting of The Australian Health Minister's
Conference and The Council of Social Welfare Ministers, 1991; National
Bioethics Consultative
Committee, Surrogacy Report 1 & 2, 1990; NSW
Law Reform Commission Surrogate Motherhood, Report No. 60 , NSW Government
Printer,
1988; Victorian Committee to consider the Social, Ethical and
Legal Issues Arising from In Vitro Fertilisation, Report on the
Disposition
of Embryos Produced by In Vitro Fertilisation, (the Waller Report),
Victorian Government Printer, 1984; Report of the Special Committee
Appointed by the Queensland Government to Inquire into the Laws Relating
to Artificial Insemination, In Vitro Fertilisation and Other
Related
Matters, Queensland Government Printer, 1984; Final Report: Com mittee to
Investigate Artificial Conception and Related Matters,
Tasmanian
Government Printer, 1985; Report of the Committee Appointed by the Western
Australian Government to Inquire into the Social,
Legal and Ethical Issues
Relating to In Vitro Fertili zation and its Supervision, 1986; Report of
the Select Committee of the Legislative
Council on Artificial Insemination
by Donor, In Vitro Fertilisation and Embryo Transfer Procedures and
Related Matters in South Australia,
South Australian Government P rinter,
1987; the ACT Attorney-General's Department, Discussion Paper: Surrogacy
Agreements in the
ACT, 1993.
[30] The National Bioethics Consultative Committee recommended that surrogacy
be regulated by the State.
[31] K Andrews "Surrogacy, Public Policy and the Law" (1993) 11(2) St Vincent's
Bioethics Centre Newsletter 1, 2.
[32] Infertility (Medical Procedures) Act 1984 (Vic) s 30(2); Family Relationships
Act 1975 (SA) s 10(h(c); Surrogate Parenthood Act 1988 (Qld) s 3(1); Surrogacy
Contracts Act 1993 (Tas) s 6; Substitute Parent Agreements Act 1993 (ACT)
s 7.
[33] Infertility (Medical Procedures) Act 1984 (Vic) s 30(3); Family Relationships
Act 1975 (SA) ss 10(g)(1), 10(g)(2); Surrogate
Parenthood Act 1988 (Qld) s 4(1); Surrogacy Contracts Act 1993 (Tas) s 7; Substitute
Parent Agreements Act 1993
(AC T) s 9.
[34] Infertility (Medical Procedures) Act 1984 (Vic) s 30(1); Family Relationships
Act 1975 (SA) s 10(f); Surrogate Parenthood Act 1988 (Qld) s 2(2); Surrogacy
Contracts Act 1993 (Tas) s 3; Substitute Parent Agreements Act 1993 (ACT)
s 3.
[35] s 30(3) provides that: "a contract or agreement (whether made before or
after the commencement of this section) under which
a woman agrees with another
person or persons to act as a surrogate mother is void".
[36] Infertility (Medical Procedures) Act 1984 (Vic) s 30(2)(b), 30(2)(c).
[37] This situation is not altered in the legislation which is to be proclaimed:
see Infertility Treatment Act 1995
(Vic) s 59.
[38] However, IVF surrogacy procedures are currently being performed in Victoria
where the proposed surrogate mother has had a tubal
ligation: see J Leeton
& K Dawson, op cit, n 18.
[39] L Haberfield, op cit, n 10, 37.
See also the Family Law Act 1975 (CTH).
[40] Adoption Act 1984 (Vic) s 12.
[41] S Roberts, "Warnock and Surrogate Motherhood" in I Kennedy A Grubb Medical
Law: Text with Materials, 2nd Ed, Butterworths,
London, 1994, 827.
[42] Op cit, n 29, Paragraph 4.12 , 53.
[43] Substitute Parent Agreements Act 1993 (ACT) s 3 defines "substitute parent
agreement" as: "a contract, agreement,
arrangement or understanding under
which - (a) a person agrees to become, or to attempt to become, pregnant
and that a child born
as a result of the pregnancy is to be taken to be
(whether by adoption, agreement or otherwise) the child of another person;
or (b)
a person who is pregnant agrees that a child born as a result of
the pregnancy is to be taken to be (whether by adoption, agreement
or
otherwise) the child of another person."
[44] Substitute Parent Agreements Act 1993 (ACT) s 9.
[45] The penalty for such an offence is a fine, imprisonment or both: Substitute
Parent Agreements Act 1993 (ACT) s 6.
[46] The Explanatory Memorandum to the Substitute Parent Agreements Bill 1994
(ACT) states that this term refers to altruistic surrogacy
arrangements.
[47] See the definition of "commercial substitute parent agreement" n
42.
[48] The offence is punishable by a fine or imprisonment or both: Substitute
Parent Agreements Act 1993 (ACT) s 5.
Section 3 of
the Act defines a "commercial substitute parent
agreement" as "a substitute parent agreement under which a
person
agrees to make or give to another person a payment or reward, other
than for or on account for expenses connected with - (a) a pregnancy
(including any attempt to become pregnant) that is the subject of the
agreement; or (b) the birth or care of a child born as a result
of that
pregnancy;"
[49] Substitute Parent Agreements Act 1993 (ACT) s 7.
[50] The penalty for such an offence is a fine, imprisonment or both: Substitute
Parent Agreements Act 1993 (ACT) s 8.
[51] Discussion on Substitute Parent Agreements Bill, ACT Legislative Assembly
11.10.94
[52] This is because parenthood of the child is established by other legislation
see for example the Birth (Equality of Status) Act
1988 (ACT), the Artificial
Conception Act 1985 (ACT), the Family Law Act 1975 (CTH) and the Adoption
Act 1993 (ACT) . For a discussion of
the effect of this legislation see the ACT Attorney-General's Department, Discussion
Paper: Surrogacy
Agreements in the ACT 1993.
[53] As previously stated these penalties are $5000 in the case of altruistic
surrogacy. Such a penalty is favourable
to the cost
of a surrogacy agreement in the United States which is
normally $60 000 US. There have been reports of Australian couples t
ravelling
to the US to enter such arrangements: see The Age, 11.7.90 at 4;
the New Idea 1.9.90 at 7.
[54] See ACT Legislative Assembly Summary of Provisions Substitute Parent Agreement
Act 1994
[55] Substitute Parent Agreements Act 1993 (ACT) s 10.
[56] Family Relationships Act 1975 (SA) s 10f defines "surrogacy contract"
as: " a contract under which - (a) a person agrees - (i) to become
pregnant or seek to
become pregnant; and (ii) to surrender the custody of,
or rights in relation to, a child born as the result of the pregnancy; or
(b) a person who is already pregnant agrees to surrender custody of, or
rights in relation to, a child born as a result of the pregnancy."
[57] Family Relationships Act 1975 (SA) 10 f defines "procuration contract"
as "a contract under which - (a) a person agrees to negotiate, arrange
or
obtain the benefit of a surrogacy contract on behalf of another; or (b)
a person agrees to introduce prospective parties to a surrogacy
contract"
[58] Family Relationships Act 1975 (SA) ss 10g(1) & 10(g)(2).
[59] This is punishable by a fine or imprisonment: Family Relationships Act 1975 (SA) ss 10(h)(a) and 10(h)(b).
[60] Parliamentary Debates (Hansard) Third Session of the 46th Parliament,
16.2.1988, 2764.
[61] Surrogate Parenthood Act 1988 (Qld) s 4(1). Section 2(2) of the Surrogate
Parenthood Act 1988 defines a "prescribed contract"
as: "a contract,
agreement or arrangement made between two or more persons, whether formally
or informally and whether o r not
for payment or reward, under which it is
agreed - (a) that a person shall become or shall seek or attempt to become
the bearer of
a child and that a child delivered as the result thereof
shall become and be treated, whether by adoption, agreement or otherwise,
as the child of any person or persons other than the person first-mentioned
in this paragraph (a); or (b) that a child delivered
from a person who is
the bearer of any embryo, foetus or child at the time when the prescribed
contract is made shall become and
be treated, whether by adoption,
agreement or otherwise, as the child of any person or persons othe r than
the person first-mentioned
in this paragraph (b)."
[62] Surrogate Parenthood Act 1988 s 3(c).
[63] Surrogate Parenthood Act 1988 s 3(1).
[64] The defendant was charged with a breach of the Surrogate Parenthood Act
1988 (Qld) s 3(c) read in conjunction with Criminal
Code (Qld) s 7.
[65] R v White Magistrates Court, Mossman, Criminal Jurisdiction, 25.10.93,
16-17.
[66] Ibid, 12.
[67] Surrogacy Contracts Act 1993 (Tas) s 7.
"Surrogacy contract" is defined as: "a contract,
agreement or arrangement,
with or without payment or reward, under which-
(a) a person agrees to become, or is already, pregnant and agrees to
surrender to
another person the custody or guardianship of, or rights in
relation to, a child born as a result of the pregnancy; and (b) the other
person agrees to accept custody or guardianship of such a child."
[68] Surrogacy Contracts Act 1993 (Tas) s 4(4). "Reward" is defined as "any benefit or other
kind of property that
has a monetary value" Surrogacy Contracts Act
1993 (Tas) s 3.
[69] This distinction is interesting given that the Tasmanian Committee to Investigate
Artificial Conception and Related Matters
(1985) concluded that
"surrogate motherhood in general and commercial surrogacy arrangements
in particular are unacceptable
to the Tasmanian community at the present
time", 87 see also M Otlowski, "Surrogacy Contracts Act
1993" (1993) 2 Australian Health Law Bulletin, 26.
[70] Ibid, 27.
[71] Parliamentary Debates (Hansard) Parliament of Tasmania House of Assembly,
42nd Parliament, 11.11.92, 4840 per Mr Roger Groom,
Minister for Community
Services.
[72] There is a possibility that this reflects the interests of pressure groups
such as the medical profession who maintain a window
of opportunity for
research if procedures such as IVF are in public demand.
[73] These objections are based on the notion that a fee injects an element
of commercialisation and potential exploitation into
what is valued as a
sacred event: the birth of a child, see T A Eaton "The British Response
to Surrogate Motherhood: An Americ
an Critique" (1985) 19 Law Teacher
163, 173.
[74] NSW Law Reform Commission, Artificial Conception; Surrogate Motherhood:
Australian Public Opinion, May 1987, Research Report.
[75] Ibid, 19.
[76] As this section is examining objections to commercial surrogacy principles
such as personal autonomy are not canvassed.
[77] M Stainsby, "The Surrogacy Debate Again: What about altruistic surrogacy?"
(1993) 11(2) St. Vincent's Bioethics Centre
Newsletter 5, 6.
[78] Proponents of surrogacy refute this by arguing that the right to found
a family is viewed as such an integral part of society
that it has been
enshrined by the United Nations (UN) in Article 16 Part 1 of the Universal
Declaration of Human Rights se e Uniacke,
S., "In Vitro Fertilisation
and the Right to Reproduce" (1987) 1 Bioethics 241, 248. In accord
with this, proponents of
surrogacy argue that the practice of surrogate
mothering is not a threat to the family, but rather promotes the family as
the basic
unit of society by allowing the commissioning couple to create a
traditional family structure through what may be the only means
available
see G P Smith II, "The Razor's Edge of Human Bonding: Artificial
Fathers and Surrogate Mothers" (1983) 5 Western New England Law
Review 666. Further, it is suggested that practices such as adoption, divorce
and blended families frequently involve the introduction of third
parties
into the family unit see T A Eaton "The British Response to Surrogate
Motherh ood: An American Critique" (1985) 19 Law Teacher 163, 173.
[79] L Andrews,Between Strangers, Harper & Row, New York, 1989, xiv citing
the official policy statement of the Vatican Congregation
for the Doctrine
of the Faith, Instruction on Report for Human Life in its Origin and on
the Dignity of Procreation (198 7).
Another
example of this type of argument is that put forward by
Canadian Professor David Suzuki who commented ".....infertility is
nature's
way of preventing genetic errors being propagated. Societies have evolved all kinds of ways of compensating
f or a couple's infertility.
If doctors
feel they must service the desires of people when elsewhere in the world
poverty, malnutrition, and parasitic diseases
are taking such a terrible toll,
it is a misappropriation of our limited resources" The Age, 5 July
1988, at 11.
[80] R D Lawler, Moral reflections on the New Technologies: A Catholic Analysis
in Embryos Ethics and Women's Rights: Exploring the
New Reproductive
Technologies, E H Baruch, A F D'Adamo & J Seager (eds), Harrington
Park Press, New York, 1988 at 168, no te
1.
The first firm teaching of the Church on this matter is found in
the Decree of the Holy Office of March 17, 1887, insisting that
artificial
insemination of women is illicit.
[81] In relation to both altruistic and commercial surrogacy these claims are,
to an extent, unanswerable as they involve subjective
matters of faith or
belief more than reason. It has been argued by Shultz, that to adopt an
objection based on "unnatural ness"
per se would lead to the eradication
of many medical procedures such as artificial insemination which are
already socially and legally
accepted for use in conventional marriage. M
M Shultz, "Reproductive Technology and Intent Based Parenthood: An Op
portunity
for Gender Neutrality" (1990) 2 Wisconsin Law Review 374.
Artificial insemination is socially and legally accepted in Australia with
5000-6000 inseminations carried out each year, M Charlesworth,
"Reasons For and Against Surrogate Motherhood" in Surrogacy - In whose Interest?,
Proceedings of the National Conference,
February 1991, Mission of St James
and St John, 58.
[82] G Corea, The Mother Machine, The Women's Press, London, 1988, 90.
[83] This type of mother occurs in IVF surrogacy. As the US case of Johnson v Calvert No.(X63-31-90)
illustrates however, it is
this form of surrogate motherhood which raises
particular problems with the definition of mother as to whether the mother
is the
woman who gives birth or the woman who is genetically related to
the baby. On this point also see G
McBride, "US Battles Over
Surrogacy" (1990) 301 The British
Medical Journal 1062.
[84] On the other hand it can be argued that this objection is based upon subjective
value judgements as to what the role of a mother
and the family unit
entails. It assumes that there is a
single, incontrovertible conception of family as a biological un it see
R
Macklin, "Artificial Means of Reproduction and Our Understanding of
the Family" (1991) 21 Hasting Center Report 1, 5.
[85] B J Carney, "Where Do the Children Go? - Surrogate Mother Contracts and
the Best Interests of the Child"
(1988) XXII
Suffolk University Law Review, 1201.
[86] In accord with family law, the welfare of the child has been adopted by
many commentators, as the most important consideration
in surrogacy agreements.
[87] T A Eaton, op cit, n 78, 173.
[88] S O'Brien, "Commercial Conceptions:
A Breeding Ground For Surrogacy" (1986) 65 North Carolina Law
Review at 145.
[89] D DeMarco, "The Conflict Between Reason and Will in the Legislation of
Surrogate Motherhood" (1987) 32 The
American
Journal of Jurisprudence at 23.
[90] L Tager, "Surrogate Motherhood, Legal Dilemma" (1986) 103 South African
Law Journal 393.
[91] K Andrews, "The Educative Role of the Law: Options for Regulation in Surrogacy" in Surrogacy - In
Whose Interest?,
Proceedings of the National Conference, 1991, Mission of
St James and St John, 98.
[92] P Singer & D Wells, op cit, n 11, 119.
[93] J Areen, op cit, n 13, 1741.
[94] H T Krimmel "The Case Against Surrogate Parenting" (1983) 13 Hastings
Center Report 37.
[95] K Andrews, op cit, n 91, 114.
[96] S O'Brien, op cit, n 88, 127.
[97] "The Commercialisation of Reproductive Technology" in The Baby Machine:
Commercialisation of Motherhood, J A Scutt
(Ed), McCulloch Publishing,
Sydney, 1988, 118.
[98] Many articles point to the fact that positive eugenics is practised in
artificial insemination for example see a 1980 report
of a sperm bank established
with all donors being Nobel Prize Winners in C Sappideen, "The Surrogate
Mother - A Growing Problem"
[1983] UNSWLawJl 5; (1983) 6 UNSW Law Journal 79, 97.
[99] N P Keane & D L Breo, New York, Everest House, 1981, 241.
[100] Refers to the separation of X and Y chromosome bearing sperm.
[101] MacFadden, "Surrogate motherhood - Refusing to relinquish a
child" in J A Scutt (ed) The Baby Machine: Commercialisation
of
Motherhood, McCulloch Publishing, Sydney, 1988, 71.
[102] See however, E M Landes & R A Posner , "The Economics of the
Baby Shortage" (1978) 7 Journal of Legal Studies , 345 where they
argue that if baby selling were legalised the implication of eugenic
alteration "would be small".
[103] L Haberfield, op cit, n 10, 13.
[104] S O'Brien, op cit, n 88, 145.
This is based on an ethical argument put forward by Immanuel Kant,
who formulated the principle
that one must never treat another person as a
means to ones own ends, but rather as an end in him or herself. Proponents
of surrogacy
argue that even under conventional legal rules, children do not
get a say in who their parents will be or for that matter in whether
they
will be born and therefore the child of a surrogacy arrangement would seem
to be no more a means to an end than a child of an
ordinary marriage. Proponent
of surrogacy argue that the trouble and expense incurred by the commissioning
couple would seem to
additionally suggest that the child will be raised by
parents who dearly want him or her.
[105] 26% had had a voluntary abortion, 9% had relinquished a child for adoption.
[106] PJ Parker, "Motivation of Surrogate Mothers: Initial Findings" 140(1)
(1983) American Journal of Psychiatry 118.
[107] C Overall, Ethics & Human Reproduction, Allen & Unwin 1987, 123.
[108] P Schuck, "Some Reflections on the Baby M Case" (1988) 76 Georgetown
Law Journal, 1794.
[109] op cit, n 29, Para 4.11 & 4.6.
[110] R A Crowley, "Developments in the Law: Surrogate Parenthood Contracts
After Baby M" (1988) 24 Willamette
Law Review 4, 1060.
[111] 525 A. 2d at 1157.
[112] 525 A. 2d at 1160
[113] L Haberfield, op cit, n 10, 13.
[114] S M Recht, " "M" is for Money: Baby M and the Surrogate
Motherhood Controversy" (1988) 37 The American University Law Review
1013, 1027.
[115] This objection extends to children who are witnesses of the process: see
S Roberts, op cit, n 41.
[116] C Overall, op cit, n 107, 111.
[117] T A Eaton, op cit, n 78. On the
other hand it has been argued that there may be some virtue in
commodifying reproductive capacities,
suggestions have included a move
towards a fully-fledged baby market where pregnant women contemplating
abortion are paid a fee to
carry the child to term and place it up for
adoption, in this context, commodification is seen as a step towards
greater efficiency
in the resolution of the dual problems of abortion and
infertility see E M Landes & R A Posner, op cit , n 102, 347-8.
[118] M M Shultz, op cit, n 81, 336. For example, Margaret Jane Radin has
warned of the "domino effect" of commodification
of women's reproductive
capacities. Radin claims that this
leads to the commodification of children and ultimately to the commodi
fication of everyone see M J Radin "Market-Inalienability"
(1987) 100 Harvard Law Review 8, 1849.
[119] 537 A. 2d 1227 (N.J. 1988).
[120] S M Recht, op cit, n 114, 1024.
It has been estimated that a payment to a surrogate mother of
$10,000 calculated at an hourly
rate for 24 hours a day and for 9 months
comes to around $1.50 per hour, see the National Bioethics Consultative
Committ ee, op cit,
n 29, 39. Proponents of surrogate motherhood however,
argue that these contentions go too far. Indeed, it is suggested that the
available data contradicts the view that surrogates are members of an
underclass. The demographic profile of a s urrogate is as follows
- the
average age is 25, half the women are married and one-quarter divorced and
one-quarter single. Half are Catholic
and half
are Protestant. Over half
have high school qualifications and about 10% bachelor degrees. 40% were un employed and the other 60%
had household
incomes of $6,000 to $55,000 and it has been argued that as surrogacy in
the US becomes widespread, more middle class
women are applying: see PJ
Parker, op cit, n 106, 117 (this was of the first 50 interviewed).
[121] A Kimbrell, "The Case Against the Commercialization of
Childbearing" (1988) 24 Willamette Law Review 1035, 1044.
[122] M Stainsby, op cit, n 77, 7.
[123] Ibid.
[124] M A Field, op cit, n 22, 26.
[125] Ibid.
[126] 537 A. 2d, 1234.
[127] Op cit, n 81, 380.
[128] 537 A. 2d, 1235.
[129] 537 A. 2d, 1248.
[130] M M Shultz, op cit, n 81, 380.
[131] K Mack, "Surrogacy Reports 1 & 2: A Legal Evaluation" (1990) Surrogacy: Bioethical Dilemmas
in the 1990's, National
Bioethics Conference, DBI Study Booklet No. 15
83-93.
[132] Harvard Law Review Editors "Developments in the Law - Medical Technology
and the Law" (1989-90) 103 Harvard Law Review 1550.
[133] M J Radin, op cit, n 118, 1930.
[134] Ibid, 1931.
[135] R Rowland, " Surrogacy - A Feminist Perspective on Ethics"
(1991) Surrogacy - In Whose Interest? Proceedings of National
Conference
on Surrogacy, Mission of St James and St John, M Meggitt (Ed), 69
[136] Proponents of surrogate motherhood would argue the situation of relinquishment
in a surrogacy arrangement is much less coercive
than the analogous
situation of adoption. That is, in the
stereotypical adoptions, a young single mother finds herself p regnant
but
unable to care for the child either financially or emotionally. This pregnancy thus has an immediacy
which could lack informed
and considered decision making. The surrogate mother does not act under
a similar pressure - she had time to refle ct upon the implications
of the
undertaking before deciding to conceive.
Further, it is argued that the state frequently sanctions a mothers
conscious decision
to relinquish her child in divorce and adoption - such
decisions are generally only scrutinise d to determine whether they are
voluntary
and therefore in the child's best interests.
[137] S M Recht, op cit, n 114,1022-23.
[138] The risk of trauma to a surrogate mother is appreciable if the adoption
context is any indication. See the Family Law Council,
op cit, n 29, 64,
citing a study by Winkler and Van Keppell on the effects of relinquishment
on the mother.
[139] See generally Winkler & Van Keppel, "Relinquishing Mothers"
in Adoption: their Long Term Adjustment (1984)
[140] A Kimbrell, op cit, n 121, 1043.
[141] Proponents of surrogate motherhood however, suggest that such arguments
fail to acknowledge the diversity of women's interests,
see D L Rhode, Justice
and Gender: Sex Discrimination and the Law, Harvard University Press,
Cambridge Mass, 1989, 225. They
point
to the fact that women become surrogate mothers for a wide variety
of reasons. Thus, they conclude that
surrogacy is not always
orientated towards an act of love and
generosity. Indeed, women may become
surrogates because they desire to exp erience the "perfect
birth" or
because they want to have the "experience of having a baby". Surrogate mothering may also be an act
undertaken
to master unresolved feelings associated with prior losses such
as abortions and forced relinquishments through giving the gift of
a live
baby. Mary Beth Whitehead illustrates how
the motivations behind desiring to become a surrogate mother are complex
as "she
was motivated to join the program in the hopes of giving the
most loving gift to an infertile couple .... ... and felt that the surrogate's
fee would assist her in providing for her children's long range
educational goals" see 525 A. 2d 1128, 1142 (1987).
[142] E S Anderson, op cit, n 28, 84.
[143] M Meggitt, "The Dismantling of Motherhood: And One Woman's
Story" (1991) Surrogacy - In Whose Interest? Proceedings
of National
Conference on Surrogacy, Mission of St James and St John, M Meggitt (Ed).
[144] C Sappideen, op cit, n 98, 95
[145] Ibid, 95-96.
[146] R Rowland, op cit, n 135, 70
[147] K Andrews, "Surrogacy: New Procedures - New Problems" (1989) 7 St Vincent's
Bioethics Centre 1, 10.
[148] R Bailey-Harris, "Reproductive Technologies - Some Critical Perspectives"
unpublished paper delivered at The First
World Congress on Family Law and
Children's Rights, 1993, Sydney Convention and Exhibition Centre, 63
[149] Ibid.
[150] M Stainsby, op cit, n 77, 6
[151] M M Shultz, Contractual Ordering of Marriage: A New Model for State Policy
(1982) 8California Law Review 2, 209.
[152] Ontario Law Reform Commission, Report on Human Artificial Reproduction
and Related Matters, Vols I & II, Ontario Government
Printer 1985,
Vol. 1, 3
[153] Ibid, 219
[154] Such as the Family Law Amendment Act 1987 (Cth) , Artificial Conception
Act 1984 (NSW).
[155] M M Shultz, op cit, n 81, 341.
[156] V L Payne, "The Regulation of Surrogate Motherhood" (1986) 16 Family
Law 178.
[157] Indeed, surrogacy has been described as "..one of the most generous and
kind acts that a woman can carry out to help others.
Pregnancy carries risks
of common complaints, obstetric complications, and an adverse effect on
health. Pregnancy requires emotional
and physical strength, tolerance and fortitude to endure for someone
else. In the sense of giving and the self
sacrifice it is one
of the most ethical acts one human can achieve." see
C Wood, "Artificial Procreation" , Unpublished Paper deliv ered
at
The First World Congress on Family Law and Children's Rights, 1993,
Sydney, 1626.
[158] J G Raymond, "Reproductive Gifts and Gift Giving: The Altruistic Woman"
(1990) 20(6) Hastings Center Report 7.
[159] E S Anderson, op cit, n 28, 74.
[160] For example last year in Victoria there was a reported attempt at IVF
altruistic surrogacy: see J Leeton & K Dawson, op
cit, n 18, 586.
[161] C Rotherham, "Surrogate Motherhood in New Zealand: A Survey of Existing
Law and an Examination of Options for Reform"
[1991] OtaLawRw 4; (1991) 7(3) Otago Law
Review,426.
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