News and features writer
The head of the Family Court is confident Australia will legalise commercial surrogacy and this will help defeat the “dark side” of an international trade that leads to exploitation and the tragic rejection of children such baby Gammy in Thailand.
Delivering a lecture on Wednesday, Chief Justice Diana Bryant painted a picture of the 21st century family and the moral and ethical challenges posed by the technological possibilities of the era.
“In Denmark there’s a huge industry in Danish sperm, which they market as Viking sperm,” Chief Justice Bryant told the Affinity Intercultural Foundation audience in Sydney.
While India had egg banks, it had imported eggs from Ukraine and Georgia for would-be parents wanting a “more Caucasian-looking child”.
Commercial surrogacy is outlawed in all Australian states and territories except the Northern Territory, and for residents of NSW, Queensland and the ACT it is illegal to enter such contracts overseas, but couples desperate for children persist in breaking the law.
“Twenty-five per cent of the international surrogacy arrangements in the world are contracted by Australians,” Chief Justice Bryant said. This amounted to about 1000 babies last year – “because we do not allow commercial surrogacy in Australia”.
It led to distressing cases: the Australian couple who wanted a girl and refused to take her twin brother from their Indian surrogate; another couple who rejected Gammy, a boy with Down syndrome, and took only his twin sister from Thailand.
Thailand outlawed surrogacy deals for foreigners in reaction to the Gammy scandal, but this only served to push the “business” deeper into the Third World and countries such Nepal and India, the judge said.
She said she was not the public face of legalising commercial surrogacy in Australia. But Chief Justice Bryant called for an urgent federal inquiry and said Australia could create a “moral and ethical underpinning” for commercial surrogacy, with legislation that protected would-be parents and surrogate mothers but, most importantly, the children born of their contracts.
“We are allowing the birth of children [overseas] who will never know their biological mother and have no means of finding out who that might be,” Chief Justice Bryant said.
Their right to know their biological origins was covered by the United Nations Convention on the Rights of the Child, but Australia was being “extremely irresponsible”.
The United States had good arrangements for commercial surrogacy. If Australia followed, some parents would still travel to Asia to take the cheaper option, she said, but they could be prevented from bringing the children home unless they could meet minimum requirements, including proof of the babies’ genetic origins.
The overseas clinics were businesses “and they will change their business model to ensure it’s compliant with what Australia requires”, Chief Justice Bryant said.
“As a nation, we haven’t grappled with the problem ourselves, and these are our citizens who are causing the problems.”
She was “passionate” about driving legislative change and she told Fairfax Media she believed “it will happen here and I think it will happen internationally”.
“There is a very dark side to this and, if left to their own devices, people can be quite inhumane and quite unethical about what they do.”