International Commercial Surrogacy in the Post-Gammy World

By Philip Marquet

2014 has been a challenging year for advocates of international commercial surrogacy.

In July, the world met Baby Gammy, a male child born to a Thai surrogate mother who claimed that Gammy had been abandoned by his intended Australian parents when they discovered he has Down syndrome.

The Australian couple, David and Wendy Farnell, returned to Australia with Gammy’s healthy twin sister, while the surrogate mother relied on donations to meet the cost of raising a child with Down syndrome.

To make matters worse, it then became public knowledge that David Farnell was a convicted child sex offender. After investigating, Western Australian child protection authorities allowed Farnell to continue caring for Gammy’s twin sister under strict conditions.

In the months following this incident, additional horror stories emerged from unregulated surrogacy markets around the world. Questions were raised about the extent to which commercial surrogacy exploits vulnerable young women, and whether it is appropriate to exchange babies for cash.

It is surprising then, that commercial surrogacy advocates were quick to use these examples to support their argument that Australia must allow commercial surrogacy with “a real focus on human rights” to prevent abuse and exploitation overseas.

But can commercial surrogacy sit comfortably with human rights?

Commercial Surrogacy is the Sale of Children

Advocates of commercial surrogacy adopt the language of human rights to defend the choices of intended parents. They often cite rights to reproductive autonomy, the right to found a family, and the right to respect for family life.

Professor John Tobin argues that the rights of intended parents are often emphasised, but they are rarely explored in a substantive way. Their interaction with other human rights, particularly the rights of the child, is often ignored.

One of these rights is the prohibition on the sale of children in the Optional Protocol on the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Article 2 states that:

Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.

As Professor Tobin writes, this broad definition almost certainly includes commercial surrogacy. Arguments which claim commercial surrogacy should not be considered child-selling are ultimately unconvincing.

For example, some authors claim that a surrogacy contract is a contract for services – what is sold is not the child at all, but rather a gestation service or some form of uterine rental.

This argument incorrectly assumes that the payment merely relates to gestation, rather than the transfer of the child. If this were true, the contract would be fulfilled when the surrogate gives birth to a live child, irrespective of whether that child is eventually transferred into the care of its intended parents. The better view (and one which even commercial surrogacy advocates acknowledge), is that surrogacy contracts are mixed-purpose contracts, including both a service component (the gestation) and the transfer of the child. It is this second component which falls foul of the Optional Protocol.

Will Regulation Lead to Harm Minimisation?

Despite the human rights arguments, some have argued for the establishment of a well-regulated domestic commercial surrogacy market to counter the harms of unregulated international commercial surrogacy. However, there are few indicators that this approach works.

First, although 18 US states allow commercial surrogacy, Americans remain well-represented among the consumers of international commercial surrogacy.

Secondly, trends in Australian usage of international commercial surrogacy reveal a tendency among intended parents to favour cheap and convenient destinations. A viable Australian commercial surrogacy market must compete with cheaper and less-regulated jurisdictions. There is thus a risk that the rights of children and surrogates will be subordinated to economic imperatives. Otherwise, intended parents may continue to seek cheaper, more convenient destinations and avoid the hassle of rights-focussed regulation.

Finally, the theory that an Australian commercial surrogacy market could have prevented the Baby Gammy situation is disingenuous. David Farnell is a convicted paedophile, and even under the most laissez-faire regulatory regime, child sex offenders would be unlikely to gain pre-approval for state-sanctioned surrogacy arrangements.

In any regulated scheme there will be winners and losers, and intended parents who are excluded will always end up trawling for babies on the world’s black market. If commercial surrogacy is to be legalised in Australia, it must be justified on principled, rights-based arguments, rather than misleading harm-minimisation claims.

Is Baby Gammy the Poster-Child for Rights-Based Reform?

Governmental responses to the scandals of 2014 are fascinating and incomplete.

Australia’s response has been both indifferent and reactionary. Changes to Australia’s fragmented surrogacy laws have been flagged for years. Unfortunately, harmonised federal legislation dropped off the table in the Gillard years, and the Abbott government seems unlikely to pick it up. In the long-term, an Australian Law Reform Commission inquiry is essential.

The Indian government has restricted the availability of commercial surrogacy in recent years, and further regulation looks likely following the events of 2014.

The Thai government appears committed to dismantling its commercial surrogacy industry, and is currently navigating a difficult transition period.

Both countries were, until 2014, the most popular destinations for Australians seeking commercial surrogacy. Their demise will have unknown consequences for the global surrogacy market.

The developments of 2014 will, however, add momentum to efforts by the Hague Conference on Private International Law to develop an international commercial surrogacy convention.

The list of nations which expressly allow commercial surrogacy is small (and apparently shrinking) – Georgia, India, Russia, Thailand, Uganda, Ukraine, and 18 US states.

Given the ongoing human rights concerns, prohibition of international commercial surrogacy is the only realistic outcome of any international instrument. The events of 2014 should inspire governments to increase their focus on the rights of the children involved, instead of lurching reflexively into the baby market.

Philip Marquet is a final year Juris Doctor candidate at Melbourne Law School. He is a Tutor for the Melbourne University Law Students’ Society Student Tutorial Service, and a General Member of the Melbourne Journal of International Law.