the case of baby gammy: why australia’s surrogacy laws aren’t working

Unless you have avoided all forms of media over the last few weeks, then you have most likely heard about Baby Gammy. But on the off chance that you don’t have a clue what I’m talking about, a Western Australia couple paid for a surrogate in Thailand and she gave birth to twins, one of whom (Baby Gammy) had Down Syndrome. The world was outraged when alerted to the fact that the couple left Baby Gammy behind while they took his sister home.

It’s a heartbreaking story, and one that brings to light a lot questions about current surrogacy laws, both in Australia and overseas. In Australia, current laws only allow for altruistic surrogacy, which stipulates that a surrogate cannot be paid beyond reasonable expenses. Further to this, each state also has its own strict criteria that need to be met before altruistic surrogacy can occur. For example, Western Australia and South Australia only allow heterosexual couples to enter into surrogacy arrangements. Commercial surrogacy, which is illegal in Australia, is pretty self-explanatory: surrogacy becomes a transaction i.e. the surrogate carries the baby in exchange for cash.

In Thailand, surrogacy was almost completely unregulated (though this is set to change with the military rulers in Thailand putting forward draft laws that ban commercial surrogacy in all cases that don’t involve family members) and as such, the process was much faster and easier to get through – hence why many Australians looking for a surrogate chose to go through this channel. It cannot be denied that Australia’s surrogacy laws mean that many people looking for a surrogate won’t get one. I know I would be hard-pressed to find someone wanting to altruistically carry my child, and even then, finding a willing surrogate is just the tip of the iceberg. However, taking the difficulties of altruistic surrogacy into account, is commercial surrogacy really the answer?

Basically there are two schools of thought when it comes to commercial surrogacy: 1. It’s a woman’s right to choose what she does with her body and 2. It is the exploitation of women in poverty. But no matter which one of these ideas you agree with, it cannot be denied that unregulated commercial surrogacy isn’t working. As in the case of Baby Gammy, nobody is culpable. There are no laws to protect the surrogate or the child, and it opens the doors wide open for exploitation and human trafficking.

According to Anne Gallagher, an international lawyer specialising in human trafficking:

“Many [surrogates] are virtual prisoners, forced to remain in a compound for the duration of the pregnancy. The common realities of repeated pregnancies, abortion when something is not quite right, complications from the use of fertility drugs, non-payment in cases of miscarriage, and failure to provide surrogates with independent legal advice are rarely acknowledged. Foreign parents are usually shielded from these uncomfortable details: the profiteers understand all too well how important it is to maintain the illusion that this is somehow an altruistic service, where everyone benefits and no one is harmed.”

So are Australia’s current surrogacy laws working? Well, if you look at the number of Australians going overseas through illegal channels, compared to the number going through Australia’s own surrogacy system, it’s not difficult to see that it isn’t. From 2011-12 over 300 babies were born through commercial surrogacy for Australian parents, while only 23 were born to surrogate mothers in Australia. When people want something badly enough they’re going to get it somehow, and the current laws are driving people away from our shores straight to unregulated systems.

To be honest, I’m finding it hard to write this article in an unbiased way. From my own ethical standpoint it’s not hard to see that surrogacy treats women’s uteruses, as well as children, like commodities. While people should most certainly have freedom over their own bodies, money essentially takes that freedom away. The surrogates in cases of commercial surrogacy are often very poor, while those looking for a surrogate are wealthy in comparison. To me, it’s a clear-cut case of the rich renting the wombs of the poor, which, quite frankly, sucks.

At the same time, my heart goes out to people who want a child but are unable to have one, because the Australian surrogacy system makes it very difficult for those people to even have a chance of becoming a parent.

So what is the answer? I have no idea. But it’s stories such as that of Baby Gammy that are bringing these issues to the forefront and getting people far more qualified than I to look at the current system and evaluate the best way to go from here. It’s not hard to see that until something changes, Australians will continue to head in droves to countries with no regulations around surrogacy, and as such, it will continue to be rampant with exploitation and heartache.