Written by Anna Krohn, National Bioethics Convenor
In 2011, the Tasmanian Catholic Women’s League prepared a detailed submission to the Tasmanian Parliament which voiced serious concerns about the risks of “genealogical bewilderment” for children and exploitation of vulnerable women within the state and beyond. Their submission also decried a state endorsed “surrogacy arrangement…. which intentionally deprives children of the opportunity to be conceived, carried in the womb, and raised by a natural mother and a natural father.”
Despite their detailed submission, and the concerned voices of other child welfare and faith groups, the Surrogacy Act 2012 (Tas) was passed in August last year.
Although there are laws relating to surrogacy in all Australian states, the Act in Tasmania was notable for its gender neutralised terminology, and its omissions in relation child protection and ethical oversight.
Now in Tasmania, a child can be born of a birth mother and his or her “parentage” transferred to an “intending parent” under a Court process. The Court process effectively wipes out the original birth certificate of the child (in which the birth mother is named) and reissues a birth certificate to the neutered “intending parents”. The original birth mother’s identity is stored privately in a state run Registry, which later can be retrieved by Court process if the child seeks it.
While commercial surrogacy is banned in Tasmania, as it is in every state and territory, in Tasmania there are only ‘flabby’ statements to prevent people advertising or promoting surrogacy deals.
The “intending” parent need be neither a mother and/or father. It can be a single man or woman, a same sex couple either male or female, or even a man and a woman not necessarily married or in any other way committed to each other.
The only requirement in order to be an “intending parent” is to be over 21 years of age and living in Tasmania at the time of the contract. Despite showing evidence of receiving legal and “accredited” counselling advice, and having enough money to cover the birth mother’s cost, there appears in the legislation no child protection checks, or restrictions relating to prior history of criminal sexual or violent behaviour nor the oversight of a Patient Review Panel (such as exists in Victoria.)
Unlike the laws in other Australian states and territories, there is also open season in Tasmania on the way in which the child may be conceived. Their Department of Justice website declares: “There are no restrictions upon the use of particular genetic material for conception.”
NSW Labor MLC, Greg Donnelly has said of the Tasmanian legislation: “For these reasons, I find it baffling that the Tasmanian Parliament is pressing ahead with a surrogacy bill that has holes in it so large, that you could drive a fleet of Mack trucks through them.” (http://www.thepunch.com.au/articles/tasmanias-surrogacy-bill-is-a-real-dogs-breakfast/)
Donnelly also noted that the “parentage” transfers can be conducted by a Magistrates’ Court rather than a Court or body of higher power or legal expertise.
Tasmania is currently being subjected to a radical legislative reform agenda that could ultimately impact all states and territories. Both the CWL in Tasmania and the CWLA Research Centre, based in Hobart, have been engaged in the critical task of monitoring and responding to other waves of what might be called ‘experimental legislation’ being considered in Tasmania. The nature of legislative reform is that once this type of legislation gains a foothold in one state, legislative reform bodies in other states can then more readily argue for similar legislation on the basis of a person’s Constitutional right not be discriminated against on the basis of state of residence.
The disruption and social experimentation involved in surrogacy arrangements take on even more serious social concerns when those arrangements involve what is called “reproductive tourism” and globalised commercial interests. On this issue, the League’s bioethical voice can find a common cause with other ethicists and social commentators who may not share all our principles regarding the inherent value of “nascent human life” (as Pope Emeritus Benedict XVI succinctly titled it).
For example, the social scientist, biologist, writer, publisher and now retired Professor of Women’s Studies at Deakin University, Renate Klein’s feminist critique of reproductive technology, RU 486, cyber pornography, prostitution and human trafficking shares much in common with our own objections to all these practices.
Renate Klein has been outspoken about the dangers of injustice even amidst the air-brushed media glow of “altruistic” surrogacy arrangements.
When the first widely publicised two-sister arrangement between Maggie and Linda Kirkman emerged in Australia during 1988, Dr Klein questioned the relational equality between the two sisters and was particularly critical of the glib statements uttered by the assisting doctor: “…he called it a gestational surrogacy and proclaimed that if the so-called surrogate mother didn’t use her own eggs and was thus not the baby’s ‘genetic mother’ no attachment would ensue. This statement is haunting us today. It is patently absurd”
Earlier this year, Renate Klein spoke about the gradual normalisation of surrogacy in Australia to a gathering of the Melbourne Catholic Lawyers Association.
She argued that in 1988, most Australians were opposed to surrogacy arrangements. But far from learning the lessons from the tragedy of “forced adoption”, she observed that public opinion has changed gradually but dramatically. Australians, she observed, have succumbed to the “sympathy” chord struck by Hollywood stars and Australian politicians who declare their “need” to access so-called “surrogate” mothers.
When in 2011, the hugely admired Australian born actress, Nicole Kidman thanked the “gestational carrier” of her second child conceived as part of a commercial surrogacy arrangement; she did much to enforce the commodification of surrogate mothers in the minds of Australians. Other media stories are dismissive of the existence of birth mothers, Renate noted. They showcase blithe birth mothers, who play down the emotional bonding of pregnancy by calling themselves “suitcases” and “containers for someone else’s baby.”
Dr Klein warned that both human rights talk and state based legislation relating to the status of children and reproductive technology is flexing so widely that large gaps accommodate the “commissioning parents” while the birth mother becomes invisible. “Her name will disappear from the child’s birth certificate” and the child is considered under laws that resemble property rights.
Despite attempts to restrict or penalise commercialised surrogacy arrangements, businesses such as the notorious “Baby 101” clinic in Thailand continues to “employ” trafficked Vietnamese mothers in deplorable situations which resemble the fate of trafficked women in prostitution.
A report from one surrogacy clinic in India noted that over 100 women were due to give birth this year, with 60 of the babies being “booked” by Australian “intending parents”.
Dr Klein urged the audience members to educate themselves by watching a range of documentaries into the rise of the “surrogacy trade”. She recommended one in particular: “Google Baby”. In this documentary, an ‘entrepreneurial’ man contracts surrogates in India who are implanted with “quality white embryos” for absentee Western couples and same-sex male couples. “Meanwhile the Indian women are required to live assembly-line style in the clinic for the whole nine months of their pregnancy and are not allowed to visit their families.” The doctors and the businessman banks the lion’s share of the money transacted in each deal.
She went on to explain that part of this glamorisation of commercial surrogacy was a growing interest among same-sex male couples to both utilise and run businesses which transport frozen human eggs and embryos to “stables of poor women”. These women of different ages—some very young and some near menopause—are often “pimped” by their menfolk for the money that this brings into the family economy.
Dr Klein asked her audience: “How does this represent opportunity or choice? It is a form of reproductive slavery which raises a class of women who ‘produce’ babies and another class of men or women who commission for them.”
“What is the opportunity presented to a hired woman who miscarries or is found to be carrying a baby with a disability: she is either unpaid or is forced under the contract to abort.”
Dr Klein also warned of the disenfranchised children of these arrangements. Babies born of reproductive technology tourism are ending up in Indian orphanages because they were born with a disability that is only discovered at birth, and are subsequently rejected by the commissioning parents who never see them but are given “quality control” reports.
She warned: “The acceptance of surrogacy will lead to a new generation of grieving women, and of children who mourn their unknown birth mother.”
Melinda Tankard Reist, “Gestational Carrier an Ugly Word”, The Australian, 19th January, 2011.
Information about the documentary film “Google Baby” (including a trailer) can be found at http://www.zippibrandfrank.com.
Renate Klein, “New Legal Arrangements for Surrogacy”, Bioethics Research Notes, Vol 23, Issue 2, pp. 23-26.