Surrogacy and Human Rights: Contemporary, Complex, Contested and Controversial

Chapter 1
Surrogacy and Human Rights: Contemporary, Complex, Contested and Controversial

Katie O’Byrne and Paula Gerber

I. Introduction

At the intersection of science, law, ethics and human rights, surrogacy1 presents a myriad of legal and moral questions, regulatory challenges and practical problems. Given these flashpoints, the global debate on surrogacy regulation is unsurprisingly both intense and sophisticated, providing a rich source of material for policy- and law-makers to consider. However, one area that has not previously been the subject of sustained and multidimensional analysis in a collection such as this is the relationship between surrogacy and human rights,2 and how human rights might influence the regulation of surrogacy.

The purpose of this edited collection is to collate and explore a wide range of human rights perspectives on international and domestic surrogacy regulation. In an area that interacts so fundamentally with the most intimate of human needs, the operation of the human body, the exercise of free will, the possibility of exploitation and the generation of life itself, using human rights as a framework for analysis can illuminate how best to protect the most important and vulnerable interests of those involved.

While the focus of many of the chapters is on Australian law and regulation, there are also chapters analysing the issue of surrogacy and human rights from an international law standpoint, as well as in the domestic law of other jurisdictions. In order to ensure a rich array of opinions, this collection includes a wide range of views from academics and practitioners around the world who have varied expertise and experience.

II. Themes and Contents

To provide a context for the debate, the collection begins with a personal and practical reflection on surrogacy. Melbourne lawyer Tony Wood shares his real life journey through surrogacy in the US in the early 2000s. Tony and his same-sex partner had a strong desire to experience the joys of parenthood, and so engaged a surrogate, who carried first their son and later their daughter. Tony and his partner built a relationship with the surrogate and provided both financial and emotional support throughout her pregnancies. She is now a special person in the lives of their kids who, Tony assures the reader, are doing just fine. Tony is no casual observer of the surrogacy debate – what he witnessed and experienced prompts him to challenge value judgments about commercial surrogacy and same-sex parenting. Given the often-heated legal and ethical debates that surround these issues, Tony’s story is a moving and heart-warming example of how many human lives can be changed positively through one surrogacy experience.

Expanding this exploration of context by adopting a broader theoretical perspective, Kate Galloway’s chapter delves into some of the deeper philosophical concepts and ethical justifications underpinning the debate about whether to regulate surrogacy and why. Galloway begins with an analysis of liberal approaches to reproductive and contractual freedom in view of state intervention in surrogacy regulation, before turning to examine feminist critiques. Galloway suggests that the Kantian moral perspective, which prioritises human dignity in order to avoid commodification of the human body, assists in protecting parties with little power – particularly the child and the surrogate. It is from this foundation that a human rights perspective on surrogacy arrangements can be developed.

The remaining academic contributions are presented in three parts. Tammy Johnson’s chapter and Anita Stuhmcke’s chapter each provide an analysis of the surrogacy regulation landscape in Australia. Johnson focuses on the fragmentation of surrogacy regulation across Australian states and territories, suggesting that this curbs the freedom of individuals to procreate. She proposes a harmonised model for national reform drawn from existing inquiries and research. Her considerations may also be broadly relevant to other federated nations with disparate surrogacy regulation, such as the US.

Stuhmcke observes that Australia is one of only two countries that have laws making it a criminal offence for residents to pursue surrogacy arrangements overseas. She examines the consequences of extraterritorial criminalisation of surrogacy in the Australian Capital Territory, Queensland and New South Wales, and argues for repeal of these provisions in order to promote the liberty of reproductive choice. In support of this position, she notes that there is no evidence that extraterritorial criminalisation serves the purposes of shaping behaviour, promoting transparency or reducing exploitation.

The next three chapters examine the human rights of particular participants in the complex network of relationships that exists in each surrogacy arrangement. First is an examination of the rights of children born via surrogacy arrangements, using the UN Convention on the Rights of the Child (‘CRC’) as the lens through which to assess whether the practice of surrogacy, and the laws regulating it, are consistent with the best interests of children born via surrogacy. Surrogacy laws and practices are analysed according to:

• the right of the child to freedom from discrimination;

• the best interests of the child;

• the child’s rights to identity and to be cared for by his/her parents; and

• the prohibition on the sale of children.

Australia is then used as a case study to measure a selection of domestic laws against the CRC, in particular immigration and citizenship laws, family law and criminal law. The results of this analysis highlight the importance of using a child-centred human rights approach to surrogacy.

In Chapter 7, Sonia Allan explores the human rights ramifications of entering into a surrogacy arrangement from the perspective of the surrogate herself, especially in cases of compensated surrogacy. Allan examines issues including human trafficking, exploitation of inequalities and lack of informed consent. In one of the most contested and controversial areas of surrogacy regulation, Allan argues that the risks of compensated surrogacy to the human rights of the surrogate render it an unacceptable practice. Surrogacy regulation in the form of minimum legal standards in domestic law could be made more consistent in order to protect the rights and interests of the people involved.

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