Surrogacy in global grey zones

Why so many Australians become ‘reproductive travellers’, and what to do about it

Jenni Millbank

Law, Social policy, Arts, culture & society | Australia, Asia

21 April 2017

Rather than demonising the hundreds of Australians that travel overseas every year to engage in surrogacy, policymakers and regulators would do better to try and understand what drives people into, and out of, fertility markets, Jenni Millbank writes.

Hundreds of Australians travel abroad each year to engage in surrogacy. Popular destination countries in recent years have included India (shifting to Nepal when India excluded Australians); Thailand (shifting to Cambodia when Thailand banned commercial surrogacy, and then again over the border to Laos when Cambodia cracked down on it), Mexico (until Mexico reversed its approach) and now Greece and Kenya. The US and Canada are stable, but far more expensive, destinations while other major hubs such as Ukraine are only accessible to heterosexual intending parents. Recent stories of stranded parents in Nepal, Thailand and Cambodia, and the arrest of an Australian facilitator by Cambodian authorities highlight the highly volatile nature of this international landscape. Despite the fact that having a baby with a stranger in a foreign country appears fraught with risk, and indeed is illegal for residents of New South Wales, Queensland and the ACT if commercial payment is made, while unpaid surrogacy within Australia is completely legal, mass movements of Australian reproductive travellers are still occurring. Why?

Australian domestic surrogacy regimes are perceived as too expensive and hard to use; for reasons that include complex and poorly understood restrictions on the ability to advertise, engage professional intermediaries and compensate surrogates. Meanwhile, international surrogacy can appear ‘simpler’ to prospective parents as agents and brokers promote particular clinics and manage the recruitment of surrogate and egg donors, legal and visa requirements, and even travel arrangements.

In our current research study, talking to Australians who travel abroad for fertility treatment, we argue that regulators and policymakers must engage with and learn from these experiences to understand what drives people into, and out of, these fertility markets.

Demonising reproductive travellers, criminalising payment, or refusing citizenship to children born overseas are crude and unhelpful responses to the challenges posed by international commercial surrogacy. One of our most significant findings is that those who undertake domestic and international surrogacy are not different kinds of people, or making choices for markedly different reasons. Rather, intending parents tried options they saw as accessible and, if those failed, moved on to try something else – moving from international arrangements to domestic, and also in the other direction.

More on this: Does India’s generous maternity leave scheme help gender equality?

We suggest that travellers’ subjective experiences of risk, care, and legality differ markedly from the assumptions about patient behaviour that have informed Australian laws to date. First, the distinction between so-called ‘altruistic’ and ‘commercial’ gamete donation and surrogacy is increasingly unsustainable and is not experienced as meaningful by many participants in cross-border reproduction.

Secondly, the status of the law is profoundly equivocal; for participants, it is often there and not there at the same time. Many interviewees appeared unconcerned about or actively avoided knowing about, the risks to which their family was exposed as a result of their lack of legal parentage. What mattered instead was the lived experience of the practicalities of new parenthood: being able to get back into Australia, obtain a Medicare card to access medical treatment for the child, and later to enrol him or her in school. This was particularly the case for those whose names appeared on the foreign-issued birth certificates, who had encountered a ‘no-questions-asked’ response from authorities.

Thirdly, self-sourced information, from the Internet and more specifically social media such as Facebook, is now the principal source of information and peer support for reproductive travellers. Relatedly, healthcare and legal professionals in the home country are rarely, and selectively, consulted. The quality and accuracy of online material is decidedly variable, and much of it is unverifiable, yet our participants regularly referred to this process as ‘research’.

This is of particular concern when destination countries are ‘grey zones’ in which surrogacy is neither legal nor specifically illegal, or where commercial payment is illegal but not enforced. Travellers take the word of someone else on an Internet forum that ‘its all fine’ in a country and that exit with their baby will take only three weeks, but this advice, even if it was true for the person making it, may not be accurate months or weeks later if officials have a change of heart. The crackdown in Cambodia marks a major change in the global landscape – in contrast to specific new bans on commercial surrogacy that were introduced elsewhere, in Cambodia existing criminal laws were used with little warning. In international surrogacy, things change fast, and they are now changing faster.

Assisting Australians to pursue safe and ethical avenues in what are often long, costly and harrowing journeys to parenthood is a complex undertaking; one that has to start with understanding their experiences and needs.

Back to Top
Join the APP Society

Leave your Comment

Your email address will not be published. Required fields are marked *

Time limit is exhausted. Please reload CAPTCHA.

Press Ctrl+C to copy

Republish

Close