Rethinking “Commercial” Surrogacy in Australia
This article proposes reconsideration of laws prohibiting paid surrogacy in Australia in light of increasing transnational commercial surrogacy. The social science evidence base concerning domestic surrogacy in developed economies demonstrates that payment alone cannot be used to differentiate “good” surrogacy arrangements from “bad” ones. Compensated domestic surrogacy and the introduction of professional intermediaries and mechanisms such as advertising are proposed as a feasible harm-minimisation approach. I contend that Australia can learn from commercial surrogacy practices elsewhere, without replicating them.
KeywordsSurrogate mothers Infertility Reproductive medicine
Current Australian laws criminalising commercial surrogacy treat the payment of money to surrogates and/or intermediaries as a crude and absolute proxy for all forms of bad practice. Commercial surrogacy is seen as “the commodification of human life” in a marketplace that “ensures the exploitation of poor families for the benefit of rich ones” (Standing Committee of Attorneys-General [SCAG] Joint Working Group 2009, 5). Yet the social science evidence base from the United States, the United Kingdom, and Israel demonstrates that payment alone cannot be used to differentiate “good” surrogacy arrangements from “bad” ones. The recoil of Australian policy-makers from any suggestion of commercialisation of reproduction has blinded us to these complexities and resulted in a head-in-the-sand approach to the increasingly transnational practice of commercial surrogacy. I seek to open this debate by contending that Australia can learn from commercial surrogacy practices elsewhere, without replicating them.
I work from a feminist perspective that values autonomy and “resonant choice” for women in family formation (Murphy 2009) and reproductive work practices (Campbell 2013; Pande 2010). This entails a textured understanding of choice that attends to women’s experiences and respects their agency, while acknowledging that a wide range of structural factors can and do constrain it. I see a role for the State in enhancing opportunities for the exercise of such textured choice in the context of surrogacy and other forms of assisted reproduction, through maintaining minimum clinical and ethical standards of care and preventing demonstrably unsafe practices. In my view, surrogacy is not a harmful practice when a birth mother makes an informed decision to undertake surrogacy and to relinquish the baby. A baby created via surrogacy does not cease to be the baby of the surrogate mother because of genetics or contracts, but because she herself believes this to be so. Legal regimes concerning surrogacy should provide for support and information prior to conception (Damelio and Sorensen 2008; Laufer-Ukeles 2013) and allow for consensual relinquishment after birth.
I make a case in this article for financial compensation of women who perform surrogacy and the introduction of specialist surrogacy agencies or “brokers” (encompassing a range of professional intermediaries who co-ordinate and perform screening, matching, counselling, and associated support services) and mechanisms such as advertising within Australia. I do so not because I support unregulated fertility markets or am indifferent to the interests of children and vulnerabilities of adult parties engaged in surrogacy. Rather the reverse: I have come over time to believe, as other scholars, judges, and ethicists do, that developing a more accessible model of domestic surrogacy is the most feasible harm-minimisation approach in the face of multiple imperatives driving the practice of transnational commercial surrogacy (Skene 2012; Stuhmcke 2004; Pascoe 2011).
Reproductive travel is not “tourism” (Storrow 2011; Cohen 2011, 2010). It is stressful, expensive, and risky. It exposes Australian intended parents and foreign-born surrogates and egg donors to unsafe or less safe clinical practices, less sound ethical standards, reduced or nil availability of counselling, and inadequate provision for children’s possible future needs (Thorn, Wischmann, and Blyth 2012; Hunt 2013). International surrogacy also exposes intended parents to complex and uncertain legal regimes, many of which operate in contradiction to each other (Storrow 2012; Hague Conference on Private International Law 2012). Recognition of parentage abroad does not carry through into Australian law, which compounds this non-recognition through excluding overseas births (and paid arrangements) from all of the current state and territory surrogacy parentage transfer regimes (Millbank 2011, 2013; Keyes 2011).
“Incentives” for unpaid domestic surrogacy offered by providing parentage transfer for non-commercial arrangements accompanied by extra-territorial criminalisation of commercial arrangements have thus far proved spectacularly ineffective. Many hundreds of Australians undertake commercial surrogacy abroad every year and this number continues to increase rapidly. In 2010–2011, there were 16 recorded surrogacy births within Australia as a result of regulated assisted reproductive treatment (Macaldowie et al. 2012), while 394 babies were born in India to Australian citizens in the same year, the majority of them almost certainly via commercial surrogacy (Department of Immigration and Citizenship [DIAC] 2012).1 Many more Australians will have undertaken treatment abroad unsuccessfully in the same period. Australian law is belatedly grappling with these developments, through ad hoc interpretations of “parent” and “child” that fly in the face of clear legislative wording and intent and produce new problems of uncertainty and unintended consequences both here and abroad (Millbank et al. 2013). While stressing that I am not opposing or seeking to limit the ability of Australians to travel for reproductive treatment, I take it as a given that this situation is far from ideal. If surrogacy is accepted as a treatment for infertility and a valid family formation avenue, it should be possible for those who need it to undertake it domestically in circumstances where it is accessible, safe, and fair, with certainty of legal status.
Below I briefly outline the current Australian approach and the role of payment in the United Kingdom and the United States. I do so in order to complicate the commercial/altruistic dichotomy and to contextualise the available social science research on surrogacy arrangements between non-intimates before considering what benefits, as well as what risks, might attend the introduction into Australia of professional intermediaries such as surrogacy agencies and monetary compensation to surrogates. In the sections that follow, I summarise key findings of the social science research to date concerning the experience of surrogates and the well-being of children born through surrogacy and contend that the denial of any form of payment to surrogates is neither necessary nor sufficient to prevent exploitation in the domestic context. While I do refer at some points to literature addressing transnational surrogacy, I stress that this article is concerned with surrogacy that occurs within the domestic context of developed economies. In the later sections I ask what Australia could learn from the experience of surrogacy in the United States and the United Kingdom, flag particular practices associated with commercial surrogacy that are of concern, and consider whether a “middle path” could be crafted in Australia. While the issue of monetary compensation to surrogates is important, even more vital is the question of who performs the role of surrogacy brokering and the scope and strength of regulation.
Prohibitions on Commercial Surrogacy in Australia
Broadly, there have been two major waves of law reform concerning surrogacy in Australia. Through the 1980s and early 1990s the first wave was part of the anxious early regulation of assisted reproduction. International controversy over the Baby M case in the United States and the Baby Cotton case in the United Kingdom meant that surrogacy generally, and commercial surrogacy in particular, were seen as dangerous practices to be avoided at all costs (Stuhmcke 2004). The first wave was therefore characterised by laws that targeted not only payments to surrogates but also other features associated with “markets.” These laws prohibited “commercial” payment to surrogates and also voided surrogacy agreements from being enforceable as contracts and banned advertising for surrogacy as either a parent or surrogate; providing professional advice on surrogacy; acting as an intermediary for surrogacy; and, in a number of jurisdictions, providing in vitro fertilisation (IVF) for surrogacy. The second wave of liberalising reforms took place from 2004 to 2012, removing restrictions on the availability of IVF for surrogacy and providing specific legislative frameworks to transfer legal parentage to the intended parents from the surrogate (and partner, if any) (Millbank 2011). However, these reforms left the range of other prohibitions on payment, advertising, and intermediaries from the first wave untouched.
Commercial surrogacy in Australia is explicitly criminalised in all states and territories (except the Northern Territory) as well as banned via ethical prohibitions on clinicians “facilitating” IVF treatment for commercial surrogacy (National Health and Medical Research Council [NHMRC] 2007, 13.1). The stringent Australian approach extends to extra-territorial criminalisation of commercial surrogacy: In Queensland, the Australian Capital Territory (ACT) and New South Wales (NSW) residents who undertake paid surrogacy elsewhere are also committing an offence (although these onerous provisions are wholly unmatched by any prosecutions or enforcement attempts) (Stuhmcke 2011, 2014).
Australia’s criminal prohibitions are complex and confusing; they vary significantly in how they define commercial surrogacy as well as what practices they prohibit and the penalties attached (Stuhmcke 2004, 2011; Campbell 2013). “Commercial” payment is paradoxically defined by what it is not: a reasonable expense. Each jurisdiction has its own statutory definition of such expenses; some exacting and detailed, categorised by type of expense as well as quantum, some requiring written receipts, others defined by a broader notion of “reasonableness.” Thus there are variations in what is (by default) a commercial payment. While most Australian jurisdictions centre payment to the surrogate in their definition, Western Australia centres payment to a third party as the basis of the definition, such that an arrangement in that state is a commercial one if an intermediary is paid even if the surrogate herself is not. The nadir of fine distinctions was reached in NSW by a law that renders an unpaid advertisement for an unpaid surrogacy arrangement lawful, but a paid advertisement for an unpaid surrogacy arrangement a criminal offence. Penalties for individuals range between one and three years of imprisonment and/or fines of between $4,000 and $110,000. The inconsistent nature of these provisions becomes labyrinthine in the context of cross-border arrangements, where parties reside in various jurisdictions and different elements of the process (signing agreements, IVF treatment, birth) occur in different states or countries (Page and Harland 2011). The Canadian definition of commercial surrogacy is, for example, exactly the opposite of that in Western Australia: For-profit payments to brokers are permitted as long as the surrogate herself is not paid above expenses. How can an Australian fertility doctor dealing with an arrangement involving parties from Western Australia and Canada know whether he or she is “facilitating” “commercial surrogacy”?
It is noteworthy that this awful tangle does not arise from lack of attention from law reformers: It is the result of 26 public inquiries and at least 17 statutory enactments across Australia over a 30-year period. By excluding commercial surrogacy from their terms of reference, the most recent round of inquiries failed to gather or consider any evidence on the practice of commercial surrogacy by Australians or grapple in even the broadest sense with what commercial surrogacy is and what it means. In short, our present laws are still based on assumption, anecdote, and speculation, not on evidence (Stuhmcke 2011).
The Regulation of Payment in the United States, Canada, and the United Kingdom
The Australian model is premised, both explicitly and implicitly, on the notion that in the absence of payment surrogacy will take place between intimates in relationships of longstanding: “best friends” and “sisters” (Millbank 2012). This paper takes us to what we can learn about surrogacy arrangements between non-intimates—whether characterised as “commercial” or “altruistic”—that have occurred in other jurisdictions.
Commercial surrogacy has occurred for 30 years in the United States with remarkably little government regulation. In Canada there is a quasi-commercial market, as brokers and clinics are allowed to advertise and to profit from the arrangement—it is only the surrogate who may not (Busby 2013). In contrast the United Kingdom, like Australia, has long banned advertising and payment; however, in England there is a well-established practice of non-profit community organisations acting as intermediaries (Horsey and Sheldon 2012). Commercial agencies facilitating international surrogacy are also appearing on U.K. soil (such as the “British Surrogacy Centre of California”).2 The “reasonable expenses” allowable in the United Kingdom are often undocumented as expenses and reflect a “going rate” of around £10,000 (Crawshaw, Blyth, and van den Akker 2012). A number of commentators have noted that such sums are in fact comparable to those deemed “commercial” in the United States (Galbraith, McLachlin, and Swales 2005; Braveman, Casey, and Jadva 2012). In addition, the U.K. courts now routinely grant retrospective authorisation of sums paid to surrogates that plainly exceed reasonable expenses (Crawshaw, Blyth, and van den Akker 2012; Gamble 2012) to a recent high point of $56,000 paid in a U.S. arrangement (J and G ).
Canada and the United Kingdom could therefore be characterised as jurisdictions that ambivalently straddle a commercial/non-commercial divide. While there is relatively little research from Canada, there is a substantial amount from the United Kingdom. I include such research in this discussion for the important reason that while it arises from an ostensibly “non-commercial” jurisdiction it concerns surrogacy arrangements that have largely occurred between erstwhile strangers and encompassed payment.
The Social Science Research on Surrogacy
In recent years a number of legal scholars have drawn attention to the social science literature on surrogacy and the manner in which legal regimes have excluded or ignored the insights of this body of research (Millbank 2012 on Australia; Campbell 2012 and Busby and Vun 2010 on Canada). Many dozens of studies of the experiences of surrogates and intended parents by psychologists, anthropologists, and other social scientists have been published since the mid-1990s. The majority of studies arise from the United States and the United Kingdom and are qualitative in nature. Some researchers have noted that early psychological studies in particular were biased towards finding out what was “wrong” with the surrogate or explaining the motivation for what was implicitly viewed as an aberrant choice (Teman 2008). A number of researchers have stressed that surrogates are in fact very “normal” women, indeed often with quite socially conservative views on gender roles and family (Teman 2008).
A difference between the United States and the United Kingdom is the degree of prevalence of “gestational surrogacy” (in which the surrogate has no genetic link to the child, using either the intended mother’s or a donor egg). Gestational surrogacy is firmly entrenched in the United States as a matter of agency and clinical practice, while in the United Kingdom “genetic surrogacy” (in which the surrogate uses her own egg) was relatively common through the 1990s and early 2000s. Two-thirds of the arrangements in the Golombok longitudinal study involved genetic surrogacy (Golombok et al. 2011), although this reflects practice from the 1990s that appears to be changing.
In the United Kingdom, Olga van den Akker pioneered the assessment of surrogate mother and intended parent experiences through the use of standardised psychological tests, finding, among other things, no significant differences in the experiences of genetic and gestational surrogates (van den Akker 2003, 2005, 2007). Standardised tests in tandem with qualitative dimensions were used by the Golombok team in its longitudinal study of outcomes for children born through surrogacy (now reporting on its 10th year: Golombok et al. 2004, 2006a, 2006b, 2011, 2013; Jadva et al. 2012). There are also significant long-term qualitative studies such as Teman’s (2010) ethnographic work in Israel.
The empirical research focusing on surrogate mothers in Britain and the United States does not support concerns that they are being exploited by these arrangements, that they cannot give meaningful consent to participating, or that the arrangements commodify women or children (2010, 80).
Longitudinal research by the Golombok team in the United Kingdom compares a set of families formed through surrogacy with those formed via egg donation, sperm donation, and regular conception (reporting at ages 1, 2, 3, 7, and 10 thus far), examining maternal function from birth and child adjustment from the age of 3. At each stage of the study Golombok and colleagues found no difference in the quality of the parenting.3 Surrogacy children did show higher levels of adjustment problems compared to all the other groups at age 7, but this had abated somewhat by age 10, and they were still “generally well-adjusted” and at all stages within the normal range for the U.K. population (Golombok et al. 2013, 657–658). Most children had been told of the surrogacy by age 7 and of those who were interviewed most had some understanding of what this meant at that age. At age 10 most reported feeling neutral about the surrogacy but had positive feelings about the surrogate herself (Jadva et al. 2012, 3012). Of the 14 children who had seen their surrogate in the previous year, nine reported that they would like to see her more. The study notes that while the majority of families maintained contact with the surrogate at the 10 year point, and most relationships were reported as harmonious, the decline in contact was greater with previously unknown surrogates and the decline was markedly more pronounced for genetic surrogates (Jadva et al. 2012, 3010).
Further qualitative research into offspring experiences and views from the United Kingdom and elsewhere is clearly needed, addressing questions such as how the relationship with the surrogate is perceived by offspring over time and whether and how any relationship with her was maintained. As yet there is no research to suggest that the amount of money, if any, received by surrogates has an impact upon the well-being of children or the quality of their relationship with either the surrogate or the intended parents.
Payment and Exploitation
Why is ethical debate so often focused on whether surrogates are paid too much and so rarely on whether they are paid too little? Women who undertake pregnancies for others in surrogacy arrangements are performing labour (in both senses) and they are undertaking significant risks. It is not self-evident that paying them nothing is the best or only way to protect and value their unique role.
High payments, particularly in circumstances of wealth disparity and other structural inequities, may act as an undue influence and potentially impair informed consent. Yet none of the available research into the national practice of surrogacy in developed economies has demonstrated that this has occurred. In the United States, surrogacy agencies actively screen out women who are impoverished (Ciccarelli and Beckman 2005), as more recently has the government board in Israel (Teman 2010). Money is frequently an acknowledged motivation for surrogates in these jurisdictions, but it is not surrogates’ sole motivation, nor one that has overborne their will or swayed them into what would otherwise be an objectionable practice. In the United States, major agencies all offer very similar payment schedules, which are openly disclosed on websites: There is, in effect, a going rate.
The meaning and impact of payment is relative and must be assessed in the context not only of each individual woman undertaking surrogacy but also in terms of the relativities of her relationship with the intended parents and the overarching economic context. It is not only that actual sums are relative to the standard of living in the country in which they are paid (such that the small sums paid to Indian surrogates represent more than a year of average earnings, whereas the much larger sums paid in the United States do not) but that wealth disparities between parties are also a result of external forces and may function differently as a result of those contexts. For example, Teman (2010) notes that in her study in Israel surrogates were poorer than in comparable U.S. studies, but so too were the intended parents—a factor she attributes to the far higher cost of IVF treatment in the United States. Thus a putatively vulnerable class of surrogates in Israel did not necessarily have as large a wealth differential between themselves and their intended parents as did the lower-middle-class surrogates in the United States. It is important to be aware of the impact of payment acting as a more acute financial incentive in times of economic downturn or in the context of inadequate social support. In effect, the background context of social security support, health funding, as well as other laws such as those imposing eligibility restrictions on treatment, travel, or parentage (Storrow 2011) may have an impact that in fact exceeds the sum paid to the surrogate or the specific terms of the agreement (Kotiswaran 2013).
Arguments concerning “commercialisation” of reproduction that focus solely on the payment of surrogates and other reproductive volunteers arguably mask considerable hypocrisy. In a country such as Australia fertility treatment is almost all provided by a highly concentrated group of very profitable private companies, which are in turn heavily subsidised by public funding of fertility treatment. The largest of these companies, representing ownership of a third of IVF providers in Australia, was recently floated on the stock market with great success (Ware 2013). In the U.S. context Krawiec has noted that intermediaries “are expected to be fully compensated for their services from the fees charged to intended parents, and are not subject to similar calls of gift giving and philanthropy [directed to surrogates and other reproductive volunteers]” (Krawiec 2009, 254–255). Krawiec characterises legal restrictions on payments to surrogates as “asymmetric pricing restrictions” that allow providers such as IVF clinics (and in the United States, surrogacy brokers) to pocket an unfair proportion of the overall cost paid by intended parents. She argues further that the discourse and expectation of altruism depresses surrogates’ ability to negotiate fair pay for their work.
While the use of economic language may be jarring to some, there is some force to the substance of Krawiec’s arguments. In the domestic context, Australian intended parents will pay upwards of $50,000 in an altruistic surrogacy arrangement, of which the surrogate herself receives zero; in the international context a U.S. surrogate would receive between $20,000 and $30,000 from an arrangement costing around $150,000 (i.e., around 20 percent), while in India the sum paid to the surrogate is at most $7,000 out of a cost to the intended parents of around $70,000 (thus only 10 percent) (Millbank 2011; Everingham 2014). Yet even in the context of international surrogacy, contemporary legal scholarship continues to focus on setting a ceiling for payments to surrogates but not for payments to professional intermediaries (Trimmings and Beaumont 2011), whose proportion of the pie continues to grow, arguably as a consequence of domestic prohibitions.
What could an ethical system of payments for domestic surrogates look like? There is a range of ways that surrogates could be paid within a regime of fair compensation that actively guarded against improper inducement. I pose these as a series of options for further consideration and exploration, not as answers. One approach would be to treat surrogacy as reproductive labour (Pande 2010) and set a minimum wage, akin to an industrial award. It is of course challenging to determine how to do this if other reproductive contributions (such as egg donation) are still undertaken on a volunteer basis in Australia and because the nature of surrogacy renders it incomparable to any other form of contribution. Benchmarking surrogacy against other forms of feminised care work, such as child care or nursing, will inevitably lead to it being attributed low monetary value. A flat fee approach has the advantage of transparency and simplicity, but it does not account for relativities in relation to the meaning of that sum as discussed above.
Another approach would be to create a compensatory model. Payment of reasonable compensation could be understood as compensation for loss and for risk encompassing “burden” and “inconvenience” measures used for other health volunteers (Pennings, Vayena, and Ahuja 2012). These could take into account lost opportunities to earn money elsewhere, lost wages (average or actual), and the broader non-economic losses including opportunities sacrificed as a result of the time taken to travel to and attend multiple medical appointments, the burden of treatment, and inability to undertake a wide range of activities that are inhibited by pregnancy. Even a perfectly easy and uncomplicated pregnancy involves physical and emotional sacrifice. Risk-based compensation takes into account the health risks undertaken while pregnant as well as those of birth.
Very few scholars appear to have considered the question of setting a minimum payment for surrogates from either a labour rights or compensation perspective (although some have flagged these broad frameworks for potential future efforts at transnational regulation (see Brugger 2012) or have expressed support for a “wage model” for gamete donation (see Pennings, Vayena, and Ahuja 2012). Trimmings and Beaumont recently proposed a reimbursement model of minimum payment for surrogates (they also propose a maximum) in the context of a mooted international treaty on surrogacy. They suggest one year’s “reasonable living expenses” as a minimum payment and put forth a formula set by reference to (three times) the minimum salary in the surrogate’s home country. However, they alternately suggest one year of “lost wages” as the minimum, such that compensation, expenses, and salary are enmeshed in their proposal (Trimmings and Beaumont 2011). Using India as an example shows how different the aspects of this proposal are: equating to around $5,000 if “expenses” are calculated by reference to triple the minimum wage, but only around $1,600 if “lost wages” represent what is earned in a year by a relatively well-paid maid or factory worker (and both sums are considerably lower than the existing going rate of $7,000).
Whether and how to develop a workable and ethical model for compensation of surrogates deserves detailed attention. Arguably this cannot be undertaken in the abstract, as the foregoing suggests that it must be anchored in the economic and social conditions of the relevant jurisdiction. The façade of altruism in the United Kingdom and the laissez faire approach in the United States mean that the question of a compensation or burden measure for payment to surrogates has not received this attention to date in either place, despite their established histories of surrogacy practice.
What Can We Learn From Commercial Surrogacy?
In this section I suggest that there is valuable information to be gleaned from the experiences of paid surrogacy in other national contexts. In particular, that the role of professional intermediation may contribute to more successful outcomes through careful selection and matching of parties who, through inexperience as well as personal involvement, may be less well equipped to negotiate their own surrogacy arrangement.
Many thousands of surrogacy arrangements between erstwhile strangers involving payment have taken place in the United States and the United Kingdom (Crawshaw, Blyth, and van den Akker 2012). Of these, only a handful have ended in litigation (Busby and Vun 2010; Busby 2013). A low rate of litigation does not necessarily mean that there have been no disputes (Busby and Vun 2010), particularly in the United States given that established precedent has long favoured intended parents over gestational surrogates (Laufer-Ukeles 2003). Mere lack of protest should not be taken to uncritically represent authentic choice or satisfaction, yet reports from both practitioners (Gamble 2012) and researchers (Jadva et al. 2003) suggest that changes of heart by surrogates about relinquishment are very rare. Commentators have claimed that the majority of both reported and unreported disputes have arisen as a result of the intended parents reneging on the agreement with the surrogate or as a result of relationship breakdown between intended parents, rather than because the surrogate refused to relinquish (Busby and Vun 2010).
In the United States, a fairly common set of practices and standards has developed among agencies and clinics, including psychological screening, counselling, and support services, despite the fact that of the few legislative standards that exist only Illinois requires this. In short, for-profit agencies have developed highly specialised expertise and become very good at finding parties who are the right fit for each other and avoiding, or resolving, misunderstandings and disputes. In the United Kingdom, the non-profit nature of the small community organisations that assist surrogacy families means that there is much less availability of screening, counselling, and associated professional support services (van den Akker 1998).
It appears that a significant amount of surrogacy in the United Kingdom takes place outside of the regulated clinic system through the use of genetic surrogacy and informal home insemination (van den Akker 2003). The absence of clinical treatment necessitates the surrogate having a genetic link to the child as without IVF she must use her own egg. It also means the absence of pre-treatment counselling that would otherwise come from the clinic. Assisted conception outside of a regulated clinic in the United Kingdom may be undertaken because it is less costly, but also because it provides legal status for the intended father if the surrogate is unmarried (see Gamble 2012). This in turn reduces the likelihood of parental orders being sought from the court to formalise the status of the intended parents (meaning there is no welfare assessment post-birth, either). Even when court orders are sought, a recent study of welfare officers in the United Kingdom (who undertake the assessment and report to the court prior to orders being made) found that most believed that intended parents and surrogates were inadequately emotionally prepared for the surrogacy process (Purewal, Crawshaw, and van den Akker 2012).
By 2011 there were more than 900 cases of parental orders in surrogacy registered in the United Kingdom (and many more arrangements that were not the subject of orders) (Crawshaw, Blyth, and van den Akker 2012). Among these there are only three contested cases in which the surrogate refused to relinquish the child and another in which the intended parents were in dispute.4 While these cases may not necessarily represent a broader trend, their select status as litigated and publically reported cases means they bear some reflection. In Re W  a U.K. surrogate had travelled to the United States and undertaken IVF treatment in California for U.S. intended parents. When she was found to be carrying identical twins (i.e., not the result of multiple embryo transfer), the intended parents expressed reservations and her relationship with them broke down. While it was the surrogate herself who initiated U.S. pre-birth proceedings attempting to secure parental rights for the intended parents and sever her own status, she did in fact return to the United Kingdom, gave birth there, and ultimately sought to retain the children there. In Re N  the parties met through a non-profit U.K. surrogacy group. The surrogate was found to have deceived the intended parents as she had meant to keep the child all along (and also an older child from another set of intended parents). In Re T  the parties met through a surrogacy Internet forum. The surrogate changed her mind mid-way through the pregnancy. In G and G  the intended father (with the support of the surrogate) sought to overturn parental orders on the basis that the intended mother had been secretly planning to end the marriage at the time the orders were granted and had since done so. While these cases all involve very different facts, it is striking that Re W was the only one where a professional agency was utilised and the only one where clinical services were engaged. Some commentators have suggested, on the basis of such cases, that disputes are more likely to occur in genetic surrogacy than gestational surrogacy (Trowse 2011; Alghrani 2012). I suggest rather that disputes are more likely to arise in the absence of professional assistance and intermediation, most particularly when there has been no counselling to assist the parties to fully appreciate their own intentions and expectations. Busby and Vun conclude that the “empirical evidence clearly establishes that formal and informal pre-conception relationship building between the potential surrogate mothers and commissioning parents are key to the success of the arrangement” (2010, 87).
Lawyer Natalie Gamble contends that most U.K. parents undertaking surrogacy in the United States do so “not to access something they cannot legally do at home, but rather [for] speedy, professional, and ‘looked after’ services” (Gamble 2012, 155). Kimberly Krawiec (2009) identifies generic market functions of intermediaries as including price-setting, coordinating buyers and sellers, and performing monitoring and quality guarantee. Krawiec suggests that most intended parents, surrogates, and gamete donors are in need of such intermediaries because they are “not repeat players” and interact with “severe information disparities” (Krawiec 2009, 236). I would add that parties may simply be ill-prepared or ill-adept at finding and matching with the right person in such a complex reproductive endeavour as surrogacy. Professional intermediaries put their “reputational capital at stake,” Krawiec argues, by engaging in screening procedures (and I would add, careful matching, information giving, and counselling services) and so reduce risk for all of the parties involved (Krawiec 2009, 236). It is notable that in comparing the cost and associated service provision involved in surrogacy arrangements in the United States and United Kingdom based on figures from 2000, Galbraith et al. contend that transaction costs to parents were significantly higher in the United Kingdom as a result of the lack of professional intermediaries (Galbraith, McLachlan, and Swales 2005).
In the context of India, Prabha Kotiswaran (2013) utilises the concept of “relational work” drawn from economic sociology to characterise the role of doctors in seven clinics she observed negotiating the roles and expectations of intended parents and surrogates. I suggest this concept may provide a helpful way of understanding the unique aspects of service provision by intermediaries in surrogacy. This is not to say that it is always done ethically or that every layer of intermediation is ultimately justified; rather that the Australian approach of rejecting every form of intermediary as per se exploitative or predatory is misplaced. Professional support services such as counselling, information-giving, and legal advice may make an important contribution to informed consent and fair agreements if they are provided by high quality and genuinely independent sources. There is no reason that such services have to be provided solely or mostly by private for-profit entities, although the contrast between the United States and the United Kingdom highlights that it is unreasonable to expect them to be provided by unfunded non-profit groups.
Concerns About Commercial Surrogacy Practices
There are important concerns about commercial markets that go beyond the question of how much money is paid and to the questions of who is paid for what. A marketplace does not, in and of itself, produce bad outcomes, but profit motives and inequalities of bargaining power and information may make certain outcomes more likely. Commercial surrogacy agencies and fertility clinics associated with them are focused on “success” and quick results, favouring the position of the “customer”—the intended parents. For example, multiple embryo transfer is routine in commercial surrogacy practice in contrast to Australian and U.K. standards on single embryo transfer (Reproductive Technology Accreditation Committee [RTAC] and Fertility Society of Australia 2010; Human Fertilisation and Embryology Authority [HFEA] 2012), with dangerously high multiple birth rates as a result.5 Multiple implantation is not caused by commercial surrogacy, but it is strongly associated with it, because it increases the likelihood of a pregnancy, and in doing so it hastens the process and boosts the “success” rates of clinics and agencies. Because of the additional pressures of time caused by travel, it is likely to be even more strongly associated with transnational arrangements. It is far from coincidental that the majority of reported Australian and U.K. cases concerning births through surrogacy in India, Thailand, and the Ukraine involve twins (and several more involve two singletons born to two different surrogates in simultaneous arrangements with the same intended parents).
Another feature of commercial arrangements is the use of contracts that purport to be (even if they are not) legally enforceable between surrogate and intended parents. Such agreements typically provide that the power of managing the pregnancy and medical care is in the hands of the intended parents and oblige the surrogate to relinquish the baby immediately upon birth. The surrogate may therefore lack, or believe she lacks, the power to manage her pregnancy, including through selective termination, on the basis that the foetuses are not legally “hers.” Although fertility clinics and maternity hospitals should be prioritising the needs of the surrogate as their patient, they may not do so if she is not seen to be the real patient/customer. Likewise, the decision to relinquish the child following birth may not be made freely by the surrogate at that time, if she perceives herself as obliged to do so by law. Contracts appear efficient and simple, made on the basis of mutual agreement, but they act to deprive the surrogate of her ability to grant or withdraw consent to vital decisions from that point on.
All of these practices are, in my view, highly objectionable. However, their association with commercial practice elsewhere does not mean that risk necessarily translates to the Australian context. Indeed, I suggest the reverse is possible: The established Australian context of overarching health care regulation and family law as well as specific surrogacy laws would prevent risky reproductive treatments and contracts that purport to inhibit women’s reproductive autonomy or determine the parental status or physical custody of resulting children. In Australian assisted reproductive practice there are very high clinical and ethical standards operating in tandem with specific legislation in several states and binding ethical guidance nationally (Millbank, Karpin, and Stuhmcke 2013). Existing rules on embryo transfer and on clinical care and patient consent would continue to apply, such that IVF for commercial surrogacy could be contained within an existing successful framework of regulation rather than distorting clinical practice, as it has arguably done elsewhere.
A contract providing that anyone other than the pregnant woman herself had control over medical decision-making concerning the pregnancy cannot be upheld under general Australian law (which has previously determined, for example, that a decision to terminate is hers alone and cannot be interfered with by the father or a court: Marriage of F ; Talbot & Norman ). Moreover, specific provisions in surrogacy statutes in Queensland and Tasmania enshrine the surrogate’s right to control the pregnancy. Likewise, any contractual provision about parentage or custody of a child could not be enforceable under Australian law for broader reasons as well as through the operation of specific surrogacy laws. The status of a parent is not something that can be contracted in or out of by individuals; it is a decision the State makes (ND and BM ). Further, who a parent is does not determine where a child lives or who they spend time with: In the Family Law Act 1975 (Cth) s 65C(c) any person with an interest in the care, welfare, and development of a child can apply for parenting orders including parental responsibility. Additionally, family law is governed by the overarching principle of the child’s best interests; as a result no decision about a child is conclusive. All of these background safeguards operate in addition to specific surrogacy laws, which provide that agreements are not enforceable and that the transfer of parentage by court orders can only take place with the consent of the surrogate herself (with very limited exceptions).
In short, any version of paid surrogacy introduced in Australia could be constrained within prevailing heath and family law rules rather than displacing them. Australia has a responsible and well-functioning system of fertility care. If compensated surrogacy and professional service provision for surrogacy were to fit within this system and be guided by it we might produce something that looked more like the hybrid model of public–private fertility service provision we currently have for assisted reproduction and a lot less like the largely unregulated U.S. surrogacy market.
A Middle Path? Compensated Surrogacy and Professional Intermediaries in Australia
I suggest that domestic surrogacy would be made fairer through the payment of set forms of compensation to surrogates and through allowing advertising and matching services to operate. While it is a catch-cry of reformers that surrogacy should be “strictly regulated” or only exist under “careful safeguards,” the issue of who provides such services and under what conditions is really the nub of the question.
A State agency, specialising in assisted reproductive issues including donation and empowered to undertake the whole life-cycle of care through information-giving, recruitment, matching, counselling, and identification and contact mediation (Millbank, Karpin, and Stuhmcke 2013) would be an ideal place to fit surrogacy services. Independence and centralisation of expertise would be beneficial. But this would require a massive rethink of the role of government in assisted reproduction, which to date has been oriented towards a prohibition model of regulation. Even on a smaller scale as a single surrogacy-specific agency, it would involve a major commitment of funds to establish and run. A government agency appears unlikely unless the project was seen to complement a national vision (as it does, for instance, in Israel; see Teman 2010). Moreover a single national agency would encounter difficulties operating across the various state jurisdictions unless they first harmonised their divergent approaches to eligibility for IVF treatment and parentage orders in surrogacy.
Non-profit community surrogacy organisations have operated for a long period in the United Kingdom. While these groups also have the benefit of centralised experience, I suggest that their lack of professionalisation is a disadvantage. Such groups are often established by people who have experience as intended parents or surrogates, with a deep commitment to the issues but without the funds or remit to provide screening, matching, or comprehensive support services. There are currently a range of Internet forums and support groups in Australia (and outside of it) in which prospective parents, surrogates, and egg donors meet, with even less peer support, management, or oversight than their U.K. equivalents.6 There is, as yet, no viable model of a non-profit organisation to undertake these services on a professional basis. The closest equivalent in Australia would be the adoption and foster care sector in which private non-profit providers work under tender, with a substantial amount of State funding. However, as these are all religious organisations (many of which are opposed to assisted conception and non-traditional family formation), and moreover the adoption model is arguably inappropriate, this is not a readily adaptable framework.
Australian fertility clinics themselves could be freed to recruit surrogates. The benefits of specialised and centralised expertise would accrue to this model; many clinics already recruit gamete donors and provide counselling, information exchange, identity release, and mediated contact, while some closely match donors and recipients, in particular in embryo donation (Millbank et al. 2013). Professional standards are well established and monitoring processes are already in place. A small number of clinics also have built up considerable experience specifically in the practice of surrogacy. However, they have taken a passive or reactive role, assessing surrogates and existing surrogacy arrangements, not recruiting surrogates or undertaking matching services. A shift to a more active role might not sit well with clinicians. Moreover, there may be disadvantages such as confusion over responsibility for medical care provision and surrogacy service entailing a perceived or real lack of interdependence in a “one-stop shop”—a finding in relation to embryo donation (Millbank et al. 2013). Existing experience also highlights that such a model might have limited take-up within the profession. Many clinics currently do not undertake any gamete donor recruitment or facilitate embryo donation or surrogacy because of the “headache”: Psychosocial service provision is time-consuming and costly in comparison with autologous IVF.
For-profit agencies may therefore be the most likely market “players” to step forward if legislation were liberalised. Amounts and modes of payment to surrogates and charges to intended parents would have to be the subject of oversight. For example, the amount that intermediaries charge could be set by regulators (as a flat rate or as a percentage of the overall cost). The use of independent trust accounting to manage funds would increase transparency and accountability. In order to reduce the risk of poor quality or unethical service provision, standards would need to be set for both quality and independence of professionals, with monitoring and non-compliance sanctions that had some force. Privatised surrogacy brokers rather than a government agency would entail a high degree of licensing, oversight, and monitoring to ensure ethical practice. There is also a risk that established transnational corporations would simply seek to “set up shop” here, rather than domestic organisations developing (with associated prospects for transferring patients, surrogates, and gametes between jurisdictions when the balance of convenience favoured it). This issue would require careful attention at the licensing stage.
The introduction of acknowledged payment to surrogates and of surrogacy brokers or agencies brings the risk that profit motivations could overpower informed consent and professional standards of conduct. Regulation generally operates reactively, is likely to only address manifest breaches, and cannot attend to the quality of individual experience. However, this article suggests that dealing with such issues openly and in the domestic context is still a safer and fairer option. Any reform will benefit from attention to the existing social science evidence base, but more research is clearly needed. In particular, if changes are introduced into Australia these should be accompanied by a system for evaluation that builds from and continues to involve independent research. This is essential to examine the impact of payment upon the quality of the surrogate’s experience (including but not limited to her decisions to consider surrogacy and to enter into the arrangement), as well as the experiences of intended parents, views and experiences of professionals such as infertility counsellors involved in arrangements, and ultimately outcomes for, and views of, children born of surrogacy arrangements.
The principal ethical precondition for surrogacy is informed and continuing consent of the surrogate. In my view textured or authentic choice requires a background of life conditions that do not constrain her options to the point that surrogacy is pursued for money when it would otherwise be an unacceptable practice to her. In the context of surrogacy laws, informed and continuing consent requires that the surrogate has full control of pregnancy care and relinquishment of the baby with consensual transfer of parentage after birth. These elements are not incompatible with compensated surrogacy or the involvement of intermediaries. Indeed, high-quality and truly independent professional intermediaries have an important role to play in ensuring that choices are freely made and fully understood.
Australian surrogacy regulation to date has ignored the results of social science research and the experience of comparable jurisdictions in favour of assumptions that rest upon an unsustainable altruistic/commercial dichotomy of care and market. As a result, most Australians are undertaking surrogacy abroad, in conditions that are less safe and less protective of the interests of surrogates, parents, and children than they would be if they were undertaken domestically.
I concur with Angela Campbell that, “too often, law’s efforts at protecting vulnerable women have yielded impacts that have harmed rather than helped them” (2012, 54). The domestic and extra-territorial criminalisation of paid surrogacy is a blunt and useless instrument if the goal is to protect the rights and interests of all parties involved in surrogacy arrangements. It arguably inhibits informed consent by preventing parents and surrogates from seeking professional assistance from lawyers and clinicians (who are themselves fearful of committing an offence through “facilitating” surrogacy in the provision of good faith professional advice) and leads to concealment of the circumstances of the birth from State agencies and, possibly as a result, also from children themselves (Busby 2013). A more considered, and carefully researched, solution is called for.
In 2011–2012 there were 519 grants of citizenship to children born in India (Department of Immigration and Citizenship [DIAC] 2013). While it is not possible to identify which of these children was simply born to Australian citizens living abroad, it is notable that while the figure for U.S. births remained stable from 2007–2008 to 2011–2012, the figure for India tripled in that time. Research into both Australian parent reports and foreign clinic and agency reports also indicates a dramatic increase in overseas surrogacy births to Australian over this period and that they were mostly occurring in India (see Everingham 2014).
See discussion in J & G  EWHC 1432. The decision was sent by the Judge to the relevant regulator for action. The British Surrogacy Centre (BSC) of California is a U.K.-based agency specialising in brokering paid surrogacy in the United States. The BSC indicates that it is still in operation and that it recently celebrated the birth of the 100th child born through its service. See http://www.britishsurrogacycentre.com/.
Higher levels of maternal distress were found for mothers who had not disclosed their child’s origins. Surprisingly, the correlation for maternal distress and elevated levels of child difficulties was higher when disclosure had occurred.
There are two further reported cases that pre-date the surrogacy legislation: In Re P  2 FLR 421 the surrogate refused to relinquish twins; in MW  2 FLR 789 a dispute arose concerning the surrogate’s contact with the child and she opposed the adoption as a result. Both cases involve genetic surrogacy, and although there was legal assistance in drafting the agreement in Re P there does not appear to have been any counselling or support in either case.
At a recent surrogacy forum five Indian fertility doctors acknowledged, under questioning, multiple birth rates in their surrogacy practice of between 25 percent and 40 percent (Stockey-Bridge 2013). For every birth there is also an unknown number of multiple pregnancies that involved selective foetal reduction or spontaneous miscarriage.
See, for example, www.surrogacy-sisters.com/; aussieeggdonors.com; fertilityconnections.com.au; surrogacyaustralia.com.au.
Thanks to Michaela Stockey-Bridge, Anita Stuhmcke, and the Journal of Bioethical Inquiry’s reviewers for their thoughtful comments and Emma Butler for research assistance.
This research was supported by Discovery Project Grant 0986213 from the Australian Research Council and funding from UTS: Law.
There are no competing interests.
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