Submission to Commonwealth Parliamentary Inquiry into Surrogacy

Update 19 May 2016:

In advance of the widely-anticipated election announcement by Malcolm Turnbull on Sunday May 8, a range of Parliamentary Committees handed down inquiry reports in the first week of May. This included the inquiry into surrogacy conducted by the House of Representatives Standing Committee on Social Policy and Legal Affairs, with their final report – called Surrogacy Matters – available here.

This update will provide a brief summary of that report, including consideration of whether they incorporated any of the recommendations made in my submission to the inquiry (included below).

Perhaps unsurprisingly, given the Committee was chaired by George ‘the Safe Schools program is like grooming’ Christensen, the Committee did not support any change in approach to commercial surrogacy in Australia:

Recommendation 1. The Committee recommends that the practice of commercial surrogacy remain illegal in Australia.

Nevertheless, this is still a disappointing outcome, particularly given the Committee did accept my suggestion that a body like the Australian Law Reform Commission (ALRC) could be tasked to develop best practice legislation in this area – they just decided to limit it to altruistic surrogacy:

Recommendation 2. The Committee recommends that the Australian Government, in conjunction with the Council of Australian Governments, consider the development of a model national law that facilitates altruistic surrogacy in Australia. The model law should have regard to the following four guiding principles:

  • that the best interests of the child should be protected (including the child’s safety and well-being and the child’s right to know about their origins),
  • that the surrogate mother is able to make a free and informed decision about whether to act as a surrogate,
  • that sufficient regulatory protections are in place to protect the surrogate mother from exploitation, and
  • that there is legal clarity about the parent-child relationships that result from the arrangement.

Looking at this recommendation in detail, I can see absolutely no reason why these same ‘guiding principles’ could not also be used to develop a framework for commercial surrogacy for inclusion in the model law (but that would take a Committee, and a Parliament, with more courage than the one that was just dissolved).

On the positive side, the Committee notes on page 5 that “[m]any inquiry participants also highlighted a number of discriminatory provisions that exist in relation to gender, marital status and sexual orientation” in state and territory laws (and referenced submissions from the Australian Human Rights Commission, myself, and the NSW Gay & Lesbian Rights Lobby).

As a result, one of the factors the Committee believes the ALRC should consider is “the need for State and Territory laws to be non-discriminatory” (Recommendation 3), which is obviously welcome.

However, the Committee’s recommendations around international commercial surrogacy are far less welcome – and far more frustrating.

The Committee acknowledged that the ban on domestic commercial surrogacy is a major contributing factor to Australian couples, including LGBTI couples, seeking access to commercial surrogacy in other countries. It also acknowledged that the criminalisation of this practice, by Queensland, NSW and the ACT, has so far been ineffective in stopping it.

But, instead of using this evidence to justify a reconsideration of the domestic prohibition of commercial surrogacy, the Committee decided to reinforce this ‘criminalisation’ agenda:

Recommendation 9. The Committee recommends that the Australian Government introduce legislation to amend the Migration Act 1958 such that Australian residents seeking a passport for a young child to return to Australia are subject to screening by Department of Immigration and Border Protection officials to determine whether they have breached Australian or international surrogacy laws while outside Australia, and that, where the Department is satisfied that breaches have occurred, the Minister for Immigration is given the authority to make determinations in the best interests of the child, including in relation to the custody of the child.

So, in Christensen & co’s ideal world, Department of Immigration and Border Protection officials will investigate Australian families who return from overseas with children born through surrogacy arrangements and, presumably, assist in their criminal prosecution under state and territory law.

Most worrying of all is the proposal for the Minister for Immigration to make determinations about the custody of that child, including potentially stripping their parents of responsibility. Imagine for a moment the current Minister, Peter Dutton (or his predecessor, Scott Morrison) making such decisions, including about LGBTI families? Let’s hope that terrifying reality never comes to pass.

All in all then, while the Committee’s Surrogacy Matters report does include some positive recommendations (such as supporting the principle that state and territory surrogacy laws should be non-discriminatory), its failure to reconsider the ban on domestic commercial surrogacy, and its approach to international commercial surrogacy, is frustrating and worrying, respectively.

George Christensen

George Christensen, Committee Chair.

 

**********

Original Post:

Committee Secretary

House of Representatives Standing Committee on Social Policy and Legal Affairs

PO Box 6021

Parliament House

Canberra ACT 2600

spla.reps@aph.gov.au

 

Thursday 11 February 2016

 

To whom it may concern

 

Submission to Commonwealth Parliamentary Inquiry into Surrogacy

 

Thank you for the opportunity to make a submission to the inquiry into surrogacy, being conducted by the House of Representatives Standing Committee on Social Policy and Legal Affairs.

 

In this submission, I will not be addressing all eight terms of reference of the inquiry in detail.

 

Instead, I propose to focus on the following three issues:

 

  • Surrogacy and lesbian, gay, bisexual, transgender and intersex (LGBTI) parent(s)
  • National consistency and
  • Commercial surrogacy, including international commercial surrogacy.

 

These three issues are of particular relevance to the first three terms of reference of the inquiry:

 

  1. the role and responsibility of states and territories to regulate surrogacy, both international and domestic, and differences in existing legislative arrangements
  2. medical and welfare aspects for all parties, including regulatory requirements for intending parents and the role of health care providers, welfare services and other service providers [and]
  3. issues arising regarding informed consent, exploitation, compensatory payments, rights and protections for all parties involved, including children.

 

For context, I am writing this submission as an LGBTI advocate and activist, and as someone who is in a long-term same-sex relationship, but not as someone who intends to enter into a surrogacy arrangement at any point in the foreseeable future.

 

Surrogacy and LGBTI parents

 

While I am not an expert in surrogacy policy and/or law across Australia, I am aware that different jurisdictions have adopted different approaches to the eligibility of LGBTI people to access surrogacy.

 

Specifically, it is my understanding that, while most Australian jurisdictions now allow non-discriminatory access to altruistic surrogacy (including my current state of residence, NSW), some jurisdictions continue to prohibit same-sex couples solely on the basis of their sexual orientation – including both South Australia and Western Australia.

 

There can be no justification for this discrimination.

 

The overwhelming majority of credible research shows that children raised in same-sex parented families are as healthy, and as happy, as those raised by mixed-sex couples.

 

As Deborah Dempsey found in the 2013 research paper “Same-sex parented families in Australia”[i]:

 

“[o]verall, research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families” [emphasis added].

 

This conclusion was supported by research in the following year, by Dr Simon Crouch and others, that:

 

“children with same-sex attracted parents in Australia are being raised in a diverse range of family types. These children are faring well on most measures of child health and wellbeing, and demonstrate higher levels of family cohesion than population samples.”[ii]

 

These findings accord with reputable studies from overseas, with evidence consistently revealing that children from same-sex parented families experience the same levels of physical and mental health as their peers, if not better.

 

Given this, I believe that it is time for the remaining Australian jurisdictions to remove any outstanding discrimination against LGBTI people seeking access to surrogacy. To support this objective, the current inquiry should express its support for the equal treatment of LGBTI parents and prospective parents, and encourage remaining jurisdictions to amend their laws.

 

Recommendation 1: The Committee should expressly support the principle that there should be no discrimination against LGBTI people seeking access to surrogacy and should encourage jurisdictions that currently discriminate against LGBTI people in this area to remove such discrimination as a matter of priority.

 

National Consistency

 

The above issue (LGBTI eligibility) is just one area where there is significant inconsistency in the legislative approach to surrogacy across Australia.

 

There are a variety of other inconsistencies, including the very different treatment of international commercial surrogacy by different states and territories (which will be addressed in more detail below).

 

There seems to be little justification for Australian jurisdictions to adopt such widely divergent approaches.

 

Moreover, the differences in legislative approach can have significant impacts on people who may be mobile, moving regularly between jurisdictions, who are contemplating becoming parents and where surrogacy is one, or even the most likely, method in which this may occur.

 

Alternatively, the differences in legislative approaches to surrogacy may induce, or in some cases compel, people to move between states and territories, especially to avoid possible criminal sanction.

 

As someone who has already lived in four different jurisdictions for extended periods (and twice in one of those jurisdictions), it seems illogical that at different points in time I would not have had access to altruistic surrogacy due to where I lived at the time, or that currently accessing international commercial surrogacy would make me a criminal in some of those places, but not others.

 

Wherever possible – and provided that LGBTI people are not denied access to surrogacy because of their sexual orientation, gender identity or intersex status – I believe that the laws regulating surrogacy should be consistent across all Australian jurisdictions, and that the current inquiry should adopt this as a principle for proposed reforms.

 

Recommendation 2: Provided that LGBTI people are not discriminated against, the Committee should expressly support the principle that the laws regulating surrogacy should be uniform across Australian states and territories, wherever possible.

 

Commercial Surrogacy, including International Commercial Surrogacy

 

The first two parts of this submission have covered issues that should be uncontroversial for most people – that LGBTI parents, and prospective parents, should be treated equally, and that, wherever possible, there should be national consistency on the laws which apply to surrogacy.

 

There is no denying, however, that the third issue is inherently controversial – and that is the question of whether, and if so how, commercial surrogacy should be allowed in Australia.

The current response by Australian states and territories has been to prohibit domestic commercial surrogacy in all circumstances, with three jurisdictions[iii] going one step further and criminalising participation in international commercial surrogacy arrangements as well.

 

My approach to this issue is informed by the following four observations:

 

  1. Surrogacy arrangements, and especially commercial surrogacy arrangements, contain a risk of exploitation of the surrogate
  2. The risk of exploitation significantly increases in the absence of appropriate regulatory oversight
  3. There are some women who perform the role of surrogate, who wish to be paid for this service and who would not be exploited by doing so, and
  4. There are many prospective parents, including but not limited to LGBTI (and especially gay male) people, for whom commercial surrogacy is their most likely avenue to become parents and who are therefore willing to participate in these arrangements, domestically or internationally and, in some cases, irrespective of its potential illegality.

 

Based on these observations, I do not believe that the current approach adopted by the states and territories on this issue is the correct one.

 

Instead, it is my view that it would be preferable for commercial surrogacy to be made lawful within Australia, but only within a regulatory framework that includes appropriate safeguards and oversight to minimise the risk of exploitation of surrogates.

 

As I have submitted previously to the NSW Government[iv], and to the National Health & Medical Research Council[v], I believe that the NSW and/or Australian Law Reform Commissions could be tasked with investigating this issue, and proposing a regulatory framework that significantly reduces the risk of surrogate exploitation.

 

This framework could then be considered by the respective Parliaments, rather than debating the issue of commercial surrogacy in the abstract, which is too often the case, and which too easily leads to blanket bans rather than a more considered approach.

 

Indeed, as I wrote to the NHMRC:

 

“While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with… broad-sweeping and all-encompassing statement[s] against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

 

“Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

 

“However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, certainly in developing countries and/or countries which do not closely regulate surrogacy arrangements.

 

“It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation…

 

“I… believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

 

“The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).”

 

It is my view that this process has the potential to produce a regulatory framework to allow commercial surrogacy within Australia that would significantly reduce the risk of surrogate exploitation and therefore allay the concerns, and garner the support, of a majority of stakeholders.

 

Recommendation 3: The Committee should recommend that the Australian Law Reform Commission be asked to review the issue of domestic commercial surrogacy and develop a regulatory scheme that significantly reduces the risk of exploitation of surrogates and which is then presented for the consideration of Parliament.

 

The above discussion obviously focuses on the issue of domestic commercial surrogacy, leaving the even more vexed question of international commercial surrogacy unanswered.

 

To some extent, I would hope that, were commercial surrogacy to be allowed within Australia, the demand to engage in international commercial surrogacy arrangements would be significantly reduced.

 

However, the introduction of such a scheme, either nationwide or in some states and/or territories, is likely to be years away. In the meantime, Australian individuals and couples will continue to seek to participate in international commercial surrogacy arrangements.

 

I think it is undeniable that some of these arrangements have already led, and will continue to lead, to the exploitation of the surrogate involved. There have also been very public examples of such arrangements where the child involved has been abandoned.

 

But I also believe that there are other examples where no such exploitation has taken place, and that the arrangement has demonstrably been to the benefit of all parties concerned, including the parents, the surrogate and the child(ren).

 

Given this, there are a range of options that could be explored, including the introduction of ‘mutual recognition’ laws, where, provided appropriate safeguards and oversight exist, the commercial surrogacy schemes of specific countries are deemed to be accepted under Australian law. However, I will leave it to experts in this area to provide submissions on how such options might be drafted.

 

What I do want to comment on is the approach of Queensland, New South Wales and the Australian Capital Territory in criminalising those people who currently engage in international commercial surrogacy arrangements.

 

While, as indicated above, I understand the motivations behind such prohibitions, I question whether in practice they have been successful. Specifically, it is my understanding that individuals and couples from all three jurisdictions continue to engage in international commercial surrogacy.

 

Even if the overall number who do so has been reduced from before the respective bans were introduced (which may not be verifiable, and therefore may or may not be true), there are nevertheless negative consequences for children who are born through such arrangements.

 

This can include increased uncertainty of their legal parentage when their families have returned to Queensland, NSW and the ACT, as well as the obvious risk of criminal sanctions being imposed on their primary caregiver(s) were the international commercial surrogacy arrangement involved to come to the attention of authorities. As a general principle, it is difficult to see how criminalising the parents involved in such cases would benefit the child(ren).

 

In this context, and given the laws in all three jurisdictions have been in operation for some time, I believe it would be useful for Queensland, New South Wales and the Australian Capital Territory to specifically review their criminalisation of international commercial surrogacy arrangements, including the potential detriment of these policies on the children born as a result of such arrangements.

 

Recommendation 4: The Committee should recommend that states and territories that have introduced criminal sanctions for people engaging in international commercial surrogacy arrangements should review the effectiveness of these laws, including investigating their impact on the children born as a result of these arrangements.

 

Thank you again for the opportunity to make a submission to this inquiry. I can be contacted at the details provided with this submission should the Committee wish to obtain additional information, or to seek clarification of any of the above.

 

Sincerely

Alastair Lawrie

 

 

[i] Dempsey, D, “Same-sex parented families in Australia”, Child Family Community Australia, Research Paper No. 18, 2013.

[ii] Crouch, S, Waters, E McNair, R, Power, J, Davis, E, “Parent-reported measures of child health and wellbeing in same-sex parented families: a cross-sectional survey”, BMC Public Health, 21 June 2014.

[iii] ACT (Parentage Act 2004, s45), NSW (Surrogacy Act 2010, s11) and Queensland (Surrogacy Act 2010, s54).

[iv] Submission on Review of the NSW Surrogacy Act 2010, April 23 2014.

[v] Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology Stage 2, September 17 2015.

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Submission on Review of NSW Surrogacy Act 2010

The NSW Attorney-General’s Department is currently reviewing the Surrogacy Act 2010, legislation which allowed equal access to altruistic surrogacy within NSW, but made a criminal offence, with a penalty of to 2 years’ imprisonment, of entering into commercial surrogacy arrangements both within NSW and overseas.

Submissions are due by 30 April (next Wednesday), and full details about the review can be found here: <http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_consultation/lpclrd_stat_reviews.html?s=1810621881

As with the NHMRC review of the Ethical Guidelines re Assisted Reproductive Technology, this subject matter is complicated, and I am sure that some people reading this blog will disagree with some of my conclusions (particularly re commercial surrogacy). if that’s the case, then I encourage you to leave a comment below and/or write your own submission.

The Director,

Justice Policy

Department of Attorney General and Justice

GPO Box 6

SYDNEY NSW 2001

justice.policy@agd.nsw.gov.au

Wednesday 23 April

Dear Director,

SUBMISSION RE REVIEW OF SURROGACY ACT 2010

Thank you for the opportunity to provide my personal submission in response to the review of the NSW Surrogacy Act 2010.

As suggested by the terms of reference, this submission is separated into two parts: the first examines whether the policy objectives of the Act remain valid, while the second considers whether the terms of the Act remain appropriate for securing those objectives.

Part A: Do the policy objectives of the Surrogacy Act 2010 remain valid?

The review outlines that the policy objectives of the Surrogacy Act 2010 are to:

  • Protect the interests of children born as a result of surrogacy arrangements;
  • Provide legal certainty for parties to surrogacy arrangements, and
  • Prevent the commercialisation of human reproduction.

Overall, I believe that the first two of these policy objectives remain valid, while the third should be replaced with the policy objective “To prevent the exploitation of people for the purposes of human reproduction”. I also believe that an additional policy objective should be added: “To recognise and support diversity in family structures and relationships.”

Protect the interests of children born as a result of surrogacy arrangements

As with likely all other people making submissions to this review, I strongly support the retention of this policy objective. I also agree with the inclusion of this objective as the primary Guiding Principle in section 3 of the Act: “[t]his Act is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.”

I note that the best interests of children born through surrogacy are protected and supported by the equal treatment of all people, irrespective of sexual orientation, gender identity and intersex status, because, as all reputable research has shown, none of these characteristics are relevant in determining whether an individual or couple will be a good, caring and loving parent(s).

The Surrogacy Act 2010 should be commended for not drawing any distinctions on the basis of these attributes, and the non-discriminatory nature of its operative provisions should be retained.

However, the role of the Act in affirming the diversity of family structures and relationships that already exist in NSW could be strengthened by the elevation of a principle reflecting this reality in a new stand-alone policy objective.

Such a possibility was considered during the second reading speech debate in 2010[1], as well as in the Standing Committee on Law and Justice’s 2009 Report entitled ‘Legislation in Altruistic Surrogacy’, which helped to inform development of the Act.

I believe that a new policy objective – namely, “To recognise and support diversity in family structures and relationships” – should be added to the Act to highlight the non-discriminatory approach of the legislation and the fact that all people can be good parents, irrespective of sexual orientation, gender identity or intersex status.

Recommendation 1: A new policy objective should be added to the Surrogacy Act 2010– “To recognise and support diversity in family structures and relationships.”

Provide legal certainty for parties to surrogacy arrangements

Not only do I believe that this policy objective remains valid, but I also believe that the Act, and its framework for transfer of parentage of children born through surrogacy arrangements, is largely successful in achieving this outcome. Therefore, this policy objective should be retained.

Prevent the commercialisation of human reproduction

I do not support this policy objective, and believe it should be replaced with a new policy objective: “To prevent the exploitation of people for the purposes of human reproduction.”

By way of explanation, I believe the inclusion of the current policy objective is, to some degree, an attempt to address the issue of potential reproductive exploitation (especially of women), but that it confuses the means (a ban on commercial reproduction, including surrogacy) with the ends (preventing reproductive exploitation). It is the ends that should be reflected in the policy objectives rather than the means.

Further, I believe that the question whether commercial surrogacy is and always will be wrong, in every possible circumstance, is complex, and one about which different people, well-motivated and passionate about human rights and welfare, can and do reach different conclusions. However, one conclusion about which I hope all people would agree is that people, and especially women, should not be exploited for their reproductive capabilities.

Personally, I do not feel confident in saying that every possible arrangement, between a birth mother and the intended parent(s) of the child, is inherently wrong – and wrong to the point where it should be criminalised – simply because of the exchange of money in addition to those which cover the birth mother’s costs.

Nor do I necessarily believe that the nature of a surrogacy arrangement automatically and fundamentally changes, from one which is recognised and supported in legislation (altruistic surrogacy), to one which is not only prohibited but attracts a maximum penalty of two years’ imprisonment (commercial surrogacy), because of the exchange of that money.

Of course, I am cognisant of the fact that the introduction of financial ‘rewards’ to the already ethically-complex area of surrogacy arrangements carries with it significant risks. Chief among those are the risk that people, and especially the women acting as surrogate mothers, will be exploited for their reproductive capabilities.

However, I also believe there are other ways in which people can be exploited for their reproductive capabilities (such as through emotional and/or familial pressure). Indeed, the Surrogacy Act 2010 already contains a range of safeguards that have nothing to do with commercialisation, but are directed at preventing exploitation (for example, the requirement for an independent counsellor’s report to verify that the birth mother has an “understanding of the social and psychological implications of the making of a parentage order” and “whether any consent given by the birth parent or parents to the parentage order is informed consent, freely and voluntarily given” – subsections 17(3)(a) and (f)).

In my view, it is the prevention of exploitation that should be the policy objective in this area, rather than commercialisation per se. This new objective should then be used to guide whether and, if so, how commercial surrogacy arrangements should be allowed (see discussion in part B).

Recommendation 2: The policy objective “To prevent the commercialisation of human reproduction” should be replaced with a new policy objective “To prevent the exploitation of people for the purposes of human reproduction.”

Part B: Do the terms of the Surrogacy Act 2010 remain appropriate to secure those objectives?

For the most part, the provisions of the Surrogacy Act 2010 work well in protecting the interests of children born as a result of surrogacy arrangements and in providing legal certainty for parties to surrogacy arrangements. As indicated in Part A, I also believe that the non-discriminatory way in which the legislation has been drafted could be enhanced further by the addition of a new policy objective (“To recognise and support diversity in family structures and relationships”).

However, I believe that there is a clear divergence in determining whether the provisions of the Act remain appropriate depending on which of the two alternative policy objectives discussed in Part A (‘prevent commercialisation’ or ‘prevent exploitation’) is adopted.

For example, if the over-arching goal of the legislation remains to prevent commercialisation in any form, then the ban on commercial surrogacy in section 8 (which includes a maximum penalty of 1000 penalty units or 2 years’ imprisonment, or both, for those people who are in contravention) would clearly still be appropriate.

The prohibition on commercial surrogacy arrangements entered into overseas by people ordinarily resident or domicile in NSW, as outlined in the ‘geographical nexus for offences’ provision in section 11, would also remain a valid attempt to secure the objective of preventing commercialisation.

However, if the policy objective of preventing commercialisation is actually seen as a means to the end of preventing exploitation (which I believe it is), or indeed, if it were to be replaced with the explicit policy objective of preventing exploitation of people and especially women for their reproductive capabilities, then we are forced to consider how these provisions are currently operating, and their impact on people both in NSW and overseas.

I suspect that, even before the Surrogacy Act 2010 was introduced, there were few, if any, commercial surrogacy arrangements entered into within NSW, and that this situation would remain the case today.

I also believe that there is evidence that the number of overseas commercial surrogacy arrangements was growing at the time of the legislation’s passage, and that, since its introduction, the number of these arrangements entered into by people resident or domiciled in NSW has likely decreased. This could be seen as evidence that the ban has reduced exploitation.

However, I also believe that there is sufficient anecdotal and other evidence that some overseas commercial surrogacy arrangements entered into by people living in NSW continue. The overwhelming desire for some individuals or couples to become parents, together with the low numbers of ‘stranger’-child adoptions, both within Australia and internationally, means that this option continues to be at or near the top of the list of possible routes to parenthood. The criminal penalty attached to section 8 is unlikely to deter such people.

The result of this is that, while some individuals or couples may choose (or have the money to choose) commercial surrogacy arrangements in countries with strong regulation and low economic disadvantage, which at least reduces the possibility of exploitation, others opt for (or are financially restricted to choosing) countries with little or no regulation, as well as higher economic inequality or disadvantage than Australia, thereby significantly increasing the risks of exploitation of the women acting as surrogate mothers.

Thus, while the ban on commercial surrogacy may be effective in preventing the exploitation of women within Australia, I believe it has to be acknowledged that it is not entirely successful in preventing the potential for exploitation of women in other countries.

In this context, we are forced to consider whether there are alternative approaches to the question of commercial surrogacy that could lower the overall level of exploitation of all women.

At least one option, which should at least be considered, would be legalising commercial surrogacy arrangements within NSW, and placing them within a tightly regulated system with the ability to be overseen by appropriate domestic agencies, while at the same time continuing the prohibition on commercial surrogacy arrangements entered into overseas.

This framework – domestic legalisation and overseas ban – arguably may have the best potential to reduce the overall level of reproductive exploitation of women.

However, it is difficult to consider the respective advantages or disadvantages of such a framework in the absence of a proposal outlining exactly how a domestic commercial surrogacy scheme could operate. I believe it is nearly impossible to compare the known harms of surrogate exploitation in (some) overseas countries, with the hypothetical risks of exploitation under an unknown domestic commercial surrogacy scheme.

For this reason, I believe that the NSW Law Reform Commission or similar body should be given the responsibility to consider this issue, but, rather than recommend whether commercial surrogacy should be legalised or not, they should instead design what a ‘model’ domestic commercial surrogacy scheme would look like, with the guiding principle of minimising the risks of exploitation.

This model could then be used as the basis for a genuine and sustained debate, in the community, the media and amongst politicians, about whether the current system (a blanket ban), or a system which allows for tightly-regulated domestic commercial surrogacy, is the best way to reduce the risk of exploitation of all women, and not just those living in NSW.

Of course, it may be that it is impossible to design a domestic commercial surrogacy scheme that sufficiently reduces the risks of exploitation of people (and especially women) for their reproductive capabilities.

It may also be that, after this process, the majority of people still believe that the ‘commercialisation’ of human reproduction is always wrong, and that commercial surrogacy should always be illegal.

However, given we are aware that at least some overseas commercial surrogacy arrangements continue to occur, and appear likely to continue well into the future, I believe it is incumbent upon us to consider whether there are any alternatives to the current regulatory approach and, after considering those alternatives, decide what is the most appropriate way “To prevent the exploitation of people for the purpose of human reproduction.”

Recommendation 3: The NSW Law Reform Commission, or similar body, should be asked to design a ‘model’ framework for domestic commercial surrogacy arrangements, with a guiding principle to minimise the risks of the exploitation of people for the purpose of human reproduction.

Should you require additional information, or to clarify any of the recommendations included in this submission, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

[1]http://www.parliament.nsw.gov.au/prod/parlment/NSWBills.nsf/0/71c024816771a264ca2577c100195683/$FILE/LC%2010210.pdf