Why Australian surrogacy laws are a total mess.

It’s hard to advocate for commercial surrogacy in Australia when we are exposed to so many stories about how it can go horribly wrong.

Recently, we heard about a U.S. man who has demanded that his commercial surrogate abort one of three babies she is expecting, threatening her with financial and legal ramifications if she doesn’t comply.

California-based surrogate Melissa Cook is 17 weeks pregnant with three babies on behalf of a man who paid her approximately $45,000 AUD. Three viable embryos were created using his sperm and a donor egg from a twenty-year-old.

When all were successfully implanted, the man then demanded the abortion.

Cook, 47, initially refused his request, saying she’d bonded with the babies and didn’t understand why he would ask her to go through a reduction procedure.

She wrote him a heartfelt letter, saying, “The doctor put in three healthy embryos. The chances were high they were all going to take. You knew I was 47 years old. If you knew you only wanted two babies, then why put in three embryos?”

It was after discovering she was expecting triplets at around eight or nine weeks that the father began pressuring her to “reduce” them, a term used to abort selected fetuses during multiple pregnancies to allow the remaining ones a better chance to thrive.

The father “almost immediately” began pressuring her to abort one of the fetuses and his lawyer contacted her just a few days ago, warning that she must abide by the terms of the agreement or will face, “loss of all benefits under the agreement, damages in relation to future care of the children [and] medical costs associated with any extraordinary care the children may need.”

With four children of her own, three of whom are triplets, Cook has successfully acted as a surrogate before. This time, it has become a nightmare for her and she told the New York Post that she will probably end up complying with the father’s request to reduce due to the legal and financial ramifications she is facing.

Commercial surrogacy is legal in 22 states in the U.S. This particular drama is unfolding in California however is a hot topic in New York where a commercial surrogacy ban has been in place since 1993, however a push is underway to legalise the practice.

This isn’t the only story of surrogacy gone wrong that is fueling debate against it in places like New York and in Australia where domestic commercial surrogacy is still illegal in all states and territories.

Although altruistic surrogacy (whereby no payment is made) is legal. Access to overseas commercial surrogacy  is allowed everywhere except NSW, QLD and the ACT, but is incredibly rare.

However, even the illegality of commercial surrogacy in those states and territories can be questioned. There is some argument that the relevant state leg that criminalises os commer surrog in NSW QLD AC is invallid under section 109 of the Australian Constitution.

Former The View co-host Sherri Shepherd has been ordered to pay approximately $5,600 AUD in child support to her ex-husband Lamar Sally after a fight over financial responsibility for a baby born via a surrogate. 10-month-old Lamar Jr. is in the care of Sally who fought to have Shepherd listed as the legal mother on the birth certificate and then pursued child support.

Shepherd claims she is not responsible for the child as a donor egg was used and the couple were divorcing before it was even born. Sally provided sperm for the procedure so the child is biologically his.

Commercial surrogate Jessica Bartholomew told Hollywood Life she has been financially ruined by the experience, saying, “If I had known this was Sherri’s attempt to save her marriage there is no way I would have agreed to this surrogacy. Since when has a baby saved a marriage? Never.”

Then there is a case much closer to home that left most Australians in shock.

Who can forget the “Baby Gammie” scandal over a year ago which saw an Australian couple abandoning their Down Syndrome son in Thailand, returning with only their healthy daughter.

Pattaramon Chanbua, the 21-year-old surrogate, was left caring for the boy. She says biological parents Wendy and David Farnell left with their daughter Pipah, refusing to care for their son. However the Farnell’s denied her version of events in an interview with Channel Nine’s 60 Minutes, claiming the surrogate refused to let them take their son and even threatened to keep their daughter.

Then David Farnell’s questionable past came to light including multiple sex offences against young girls in the 1990s.

Then this year there was the news that a New South Wales couple had returned home with just one of their twins born in India via a commercial surrogate. They claimed they couldn’t afford to care for both so returned only with the girl, leaving their perfectly healthy baby boy behind.

They were subsequently investigated by Australian officials and the High Commission.

Australians can no longer easily access commercial surrogacy in Thailand and in India it is becoming increasingly difficult and there is some discussion that they too will block it for all.

That’s according to family and reproductive law specialist Chris Ambas from Boers Associates in Melbourne. He says that while the commercial surrogacy doors have closed in Thailand and may eventually close in India, Australians still wishing to access commercial surrogacy arrangements overseas can do so through Mexico which has a flourishing commercial surrogacy program, some parts of America, Canada, Georgia and Russia.

Ambas says the majority of his work is with Australians accessing overseas surrogacy, as altruistic surrogacy results in as few as 20 cases per year. He speculates that the rarity of surrogacy in Australia is due to the difficulties involved. “Why would you want to carry someone’s child for nine months,” he says. “It’s a pretty heavy burden to carry.”

He says that when altruistic surrogacy does occur it is often between family members and friends and is governed by state legislation. The process involves counselling of the intended parents, the surrogate and the surrogate’s partner, if there is one. Ambas feels this process is thorough and helps ensure the success of an altruistic agreement. However the laws governing these arrangements aren’t ideal.

Surrogacy Australia says Australia is the largest per capita consumer of overseas commercial surrogacy.

“Commercial arrangements are unlawful in Australia and altruistic arrangements are lawful, but here’s the thing; surrogacy agreements are unenforceable in altruistic matters. For example, you cannot enter into a legally binding surrogacy agreement in Victoria.”

“It’s a total mess. The courts have inconsistently interpreted the section of the Family Law Act that empowers them to declare intended parents, the legal parents of children born as a result of an overseas commercial surrogacy arrangement.”

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“When these intended parents apply for the Declaration of Parentage they also apply for orders that give them parental responsibility and therein lies the difficulty. If intended parents are unable to obtain a declaration of parentage, then there is a particular class of decision-making-powers and responsibilities that do not apply to them. To that extent, children born as a result of overseas commercial surrogacy arrangements are at a disadvantage compared to children conceived naturally.”

While Australian surrogacy laws remain such a mess, childless couples who want a family have only two viable choices. They can either continue to try and fall pregnant naturally or to access fertility treatment. Even if commercial surrogacy were an easier process, it is expensive, costing anything from $40,000 to $120,000.

It’s hard to image what the future holds for Australia when it comes to commercial surrogacy, however Ambas makes a compelling argument for commercial surrogacy to become a legal practice in Australia. He says Australia is a signatory of the United Nations Declaration of Human Rights. “This is an international treaty which basically recognises everyone’s human right to have a family. If Australia is going to act more consistently to this treaty, I think it needs to

He makes an interesting point.

Australia has signed this treaty recognising everyone’s human right to have a family, however by what means should we be allowed to have a family? Should it be by any means or only those we find morally and ethically acceptable? And who dictates that what constitutes morality and ethics.

Our future with commercial surrogacy remains to be seen.