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The regulation of commercial surrogacy: The wrong answers to the wrong questions

This is a pre-publication version of an article in (2015) 22 Journal of Law and Medicine 333

Anita Stuhmcke^*

^* PhD (ANU), Professor of Law, University of Technology, Sydney. This research is funded by ARC DP150101057, conducted with Professors Jenni Millbank and Isabel Karpin. This article is based on a presentation to the “Commercial Surrogacy: What Role for Law?” Symposium held in April 2015. The author is indebted to Professor Harold Luntz, “Reform of the Law of Negligence: Wrong Questions – Wrong Answers” (2002) 25 UNSWLJ 836 for both the title to this article and the underexplored notion as to how poorly thought through questions may result in poor law reform. From this point forward, the content and analysis diverge from that of Professor Luntz. The author thanks Anne-Maree Farrell, Adiva Sifris and the organisers as well as all of the discussants at the Symposium, and for comments on previous drafts of this article Professor Jenni Millbank.
Correspondence to: anita.stuhmcke@uts.edu.au.

The criminal ban on commercial surrogacy across Australian jurisdictions is the result of the conflation and confusion of two flawed assumptions. The first being that the criminalisation of commercial surrogacy will discourage a surrogacy “industry” and the second that commercial surrogacy and altruistic surrogacy are two distinguishable “types” of surrogacy arrangements. This article argues that the criminalisation of commercial surrogacy has resulted in unforeseen and undesirable consequences, removing opportunity for evidence-based law reform. Moreover, analysis of both the approach of Australian courts and the operation of surrogacy legislation suggests that the binary regulatory approach which distinguishes “commercial” from “altruistic” surrogacy is a legal fiction. In summary, this article argues that the current Australian regulation of surrogacy is both blunt and ineffectual, surrogacy is a nuanced and complex practice which requires a regulatory response which is principled, holistic and evidence based. 
Introduction
The criminal ban on commercial surrogacy across Australian jurisdictions is the result of conflation and confusion of two flawed assumptions. The first being that the criminalisation of commercial surrogacy will discourage a surrogacy “industry” and the second that commercial surrogacy and altruistic surrogacy are two distinguishable “types” of surrogacy arrangements. The existence of these assumptions has a long history in Australia and other common law jurisdictions, such as the United Kingdom, across legislation, judicial decisions and scholarly work. Most recently, since 2007 Australian policy-makers have acted on the truth of these two premises to further entrench the distinction between the types of surrogacy through parliamentary inquiry and law reform, which extends legislative accommodation of altruistic surrogacy while largely ignoring the practice of commercial surrogacy. Indeed, the only recent legislative change to commercial surrogacy, introduced in Queensland in 2010 and in New South Wales in 2011, further entrenches two “types” of surrogacy through applying extraterritorial criminal sanctions to individuals who pursue commercial surrogacy overseas. 

“Commercial” surrogacy is illegal in all jurisdictions except the Northern Territory: Surrogacy Act 2010 (Qld) s 56; Surrogacy Act 2010 (NSW) s 8; Parentage Act 2004 (ACT) s 41; Assisted Reproductive Treatment Act 2008 (Vic) s 44; Surrogacy Act 2012 (Tas) s 40; Family Relationships Act 1975 (SA) s 10H; Surrogacy Act 2008 (WA) s 8. The National Health and Medical Research Council considers it “ethically unacceptable”: National Health and Medical Research Council, Ethical Guidelines for the Clinical Practice of Assisted Reproductive Technology in Clinical Practice and Research (2007) Guideline 13.1.

There are, of course, additional reasons for the criminal ban. In 1985, the Tasmanian Committee to Investigate Artificial Conception and Related Matters stated “surrogate motherhood in general and commercial surrogacy arrangements in particular are unacceptable to the Tasmanian community at the present time”: Tasmanian Committee to Investigate Artificial Conception and Related Matters, Final Report (1985) 87.

See n 1. The guiding principles of the legislation are generally to promote the welfare or “best interests” of the child and prevent exploitation: for example, Assisted Reproductive Treatment Act 2008 (Vic) s 5(a) and (b).

See, for example, Surrogacy Act 2012 (Tas) Pt 2 (defining reasonable costs for a surrogate), Pt 7 (criminalising commercial surrogacy).

For a comprehensive analysis, see Jenni Millbank, “The New Surrogacy Parentage Laws in Australia: Cautious Regulation or ‘25 Brick Walls’?” (2011) 35 MULR 165.

As of 1 June 2010, the Surrogacy Act 2010 (Qld) s 54, and as of 1 March 2011, the Surrogacy Act 2010 (NSW) s 11 apply extraterritorial criminal legislative provisions aimed at preventing Australians engaging in global commercial surrogacy. In enacting this provision, Queensland extended its original 1988 provisions and New South Wales joined the Substitute Parent Agreements Act 1994 (ACT) s 45 – these provisions were imposed without community consultation: see Anita Stuhmcke, “Extraterritoriality and Surrogacy: The Problem of State and Territory Moral Sovereignty” in Paula Gerber and  Katie O’Byrne (eds) Surrogacy, Law and Human Rights (Ashgate Publishing, 2015).

	This article argues that the legislative creation and ongoing refinement of binary surrogacy is unnecessary, undesirable and that the subsequent application of criminal law has proven to be an inappropriate regulatory response to the practice of commercial surrogacy. First, the article discusses the impact and effect of the application of criminal law, concluding that this regulatory approach fails. It argues that the criminal provisions have impact which extends far beyond their lack of practical implementation, creating a class of deviance and encouraging Australians to use offshore commercial surrogacy. 

Sam Everingham, Martyn Stafford-Bell and Karin Hammarberg, “Australian’s Use of Surrogacy” (2014) 201(5) Med J of Aust 1, which indicates laws are a deterrent for only 9% of respondents.

	The article then explores the binary regulatory model of surrogacy. Here it is argued that the creation of altruistic surrogacy and commercial surrogacy is a fiction of law. Indeed, Australian family law courts ignore the operation of criminal provisions. Judicial decisions focus upon the best interests of the child in making determinations and overlook competing public policy factors such as illegality, monetary payments and “rights” of surrogate mothers. The fictionalised divide is also apparent in Australian legislation, which allows monetary payments to surrogate mothers for “incidentals” such as medical, travel and home-help expenses. Ironically, such payments recognise the exchange intrinsic in both “types” of surrogacy, confirming that labelling of a surrogacy arrangement as altruistic or commercial evolves from normative assumptions as to desirable public policy rather than evidence of the reality of the practice. It follows that the binary model ignores nuances and alternative truths, such as surrogate mothers either benefiting or suffering exploitation regardless of the amount of money paid. It also ignores evidence as to the lived reality of infertility, where “childlessness is a major social handicap in a society which applauds … having children as both a critical indicator of adulthood and major descriptor of family formation”, and thus fails to counter the willingness of individuals to use surrogacy as a means of family formation. 

That it is an “assumption or supposition of law that … a state of facts exists which has never really taken place”. The definition goes on to state that it is “[a]n assumption for the purposes of justice of a fact that does not or may not exist”: see Black’s Law Dictionary (West Publishing, 6th ed, 1990).

M Carter, “Victoria – The Surrogacy State” (1993) 36 Health Issues 12.

	Australian regulation of surrogacy is both blunt and ineffectual. It fails to embrace surrogacy as a complex and contradictory means of family formation. For example, surrogacy may both liberate and subordinate women. Here, as Radin suggests, categorising surrogacy as commercial or altruistic may be an “ironic self-deception” – where in either instance surrogates may feel that they are fulfilling their womanhood by having a baby for someone else when really they may be just reinforcing oppressive gender roles. This inherent contradiction as to who benefits and who suffers through surrogacy is left unresolved through the existing binary model of regulation. To develop a more principled approach, this article provides three regulatory suggestions for change. First, given the global pervasiveness of surrogacy and the regulatory failure of criminal law, the practice should be decriminalised. Of course, the criminal law will still operate such as to prevent fraudulent forms of harmful behaviour. Secondly, surrogacy regulation should be reframed around a more carefully crafted premise, where the existing model of exploitation and criminalisation is replaced with a medicalised assisted reproductive technology (ART) concept of autonomy and choice in personal decision-making. Finally, the premise for law reform must shift from seeking to prevent surrogacy for payment to protecting parties to a surrogacy arrangement. This regulatory shift will minimise the role and impact of criminal law through eradicating the assumed link between the commercialisation of surrogacy and exploitation and assist to eliminate the flawed binary approach to regulation. 

Margaret Radin, “Market Inalienability” (1987) 100 Harv L Rev 1849, 1930.

The author is not the only voice to make this call. In August 2014, it was reported in The Australian that Chief Justices John Pascoe and Diana Bryant of the Federal Circuit Court and Australian Family Court were calling for a lifting of the ban on commercial surrogacy.

Criminal law: Creating a hierarchy of surrogacy
The current regulation of surrogacy categorises the practice as falling into two identifiable categories – “altruistic” where no money is paid to the surrogate mother for her “services” and “commercial” where money is paid. This terminology suggests a practice either undertaken selflessly or for profit: the one being a gift relationship, where the surrogate gives her services for no expectation of reward and the other being a materialistic form of surrogacy, where fully commercial contracts are brokered by a professional surrogacy agency. Traditionally, this divide centres the motivation and compensation provided to the surrogate mother, where she is either paid nothing for her role in the arrangement or otherwise benefits financially. The typical example given of each category is an altruistic arrangement where an empathetic sister or known friend agrees to act as a surrogate for love for the individual or couple, or a commercial agreement where the individual or couple engage a surrogate agency with an arms-length contractual agreement imposing conditions of service upon the surrogate in return for payment that extends beyond the payment of expenses. 

This is a point made in 1996, see Anita Stuhmcke, “For Love or Money: The Legal Regulation of Surrogate Motherhood” (1996) 3 eLaw: Murdoch University Electronic Journal of Law 1.

	This binary formulation of surrogacy is longstanding. The earliest legal operation of commercial surrogacy took place in the United States, where in select jurisdictions the commercial surrogate industry has been operating since the 1980s. Today, this industry has developed into what is described as a “robust international market in commercial reproductive surrogacy”, an industry which is exponentially and rapidly growing both in terms of usage of such services and the cross-border complexity of such arrangements. Australians are part of this growth market. The economic divide between Australia and other countries where commercial surrogacy is widely available means that “cheap travel, advances in technology and telecommunications and the anonymity of the internet have created opportunities” so that we now see a disproportionately increasing usage of international surrogacy, as compared with the estimated number of children born through “altruistic” surrogacy in Australia. For example, a recent report commentating on the banning of international commercial surrogacy in Thailand in 2014 observes that:

For an overview of the United States regulation, see Julie Shapiro, “For a Feminist Considering Surrogacy, is Compensation Really the Key Question?” (2014) 89 Wash L Rev 1345; Mark Strasser, “Traditional Surrogacy Contracts, Partial Enforcement, and the Challenge for Family Law” (2015) 18 J Health Care L & Pol’y 85.

Yasmine Ergas, “Babies Without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy” (2013) 27 Emory Int’l L Rev 117.

Ergas, n 14, 120, citing a study of five brokerage agencies that reported a growth of almost 1000% and a “significant” increase in cross-border clientele between 2006 and 2010.

Andrea Whittaker and Amy Speier, “Cycling Overseas: Care, Commodification, and Stratification in Cross-Border Reproductive Travel” (2010) 29 Med Anthropol 363.

Danielle Ireland-Piper, “Extraterritoriality and the Sexual Conduct of Australians Overseas” (2010) 22 Bond LR 37.

Helen Szoke, “Surrogacy: All the Features of a Relationship that Could Go Wrong?” (2001) 28 Melbourne Journal of Politics 55, 56 cited media reports of 28 infertile Australian couples using a United States surrogacy agency in the previous decade, stating that “the number of people seeking a surrogacy arrangement is small”.

Everingham, Stafford-Bell and Hammarberg, n 7, where in a survey of 312 participants who commenced the survey, only 22 or 8% commenced with a surrogate in Australia. Further, the “number of Australian parents having children through regulated surrogacy arrangements annually remains very low (n = 14 in 2010) compared to well over 270 babies estimated to be have been born to Australians, according to a 2011 self-report survey of just 14 surrogacy agencies in India, the US and Thailand”: see Sam Everingham, “Use of Surrogacy by Australians: Implications for Policy and Law Reform” in Alan Hayes and Daryl Higgins (eds) Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 76.

 [T]he military allowed more than 200 Australian couples with babies that had been born or who had entered into commercial arrangements with Thai surrogate mothers to take their babies home after the Abbott government made representations to Thai authorities. 

Lindsay Murdoch, “Thailand Bans Foreign Surrogacy after Baby Gammy Affair”, The Sydney Morning Herald, 20 February 2015 <http://www.smh.com.au/world/thailand-bans-foreign-surrogacy-after-baby-gammy-affair-20150220-13ksrm.html>.

	This growth in the use of international commercial surrogacy services by Australians contradicts the law in three Australian jurisdictions, the Australian Capital Territory, New South Wales and Queensland where such extraterritorial activity is illegal. Moreover, from the earliest instances of Australian legislative regulation, criminal law has been used to prohibit commercial surrogacy. The Australian regulatory path may generally be characterised as one of labelling commercial surrogacy as “deviant” and “criminal” and altruistic surrogacy as “less than desirable” but “allowable”. The reasons for such legal demarcation have been oft discussed. The first committee to investigate the practice in Australia, the Waller Committee found that commercial surrogacy is “in reality, agreements for the purchase of a child and should not be countenanced”. Subsequent regulatory choices have been based upon fear that commercial surrogacy will transform human nature, as pithily put by Sommerville: “[C]ommercial surrogacy commodifies, objectifies and reifies the transmission of human life from one generation to the next and fails to uphold respect for the passing on of life.” 

Anita Stuhmcke, “Surrogate Motherhood: The Legal Position in Australia” (1994) 2 JLM 116. The first piece of legislation introduced in Australia to criminalise commercial surrogacy was the  Infertility (Medical Procedures) Act 1984 (Vic). This Act criminalised commercial but not altruistic surrogacy: ss 30(2)(b), 30(2)( c).

Cited in Derek Morgan, Issues in Medical Law and Ethics (Cavendish Publishing, 2001) 66. Radin notes that there are coherent feminist arguments on both sides of the reproductive technology debate. While the focus of this article is on commercial surrogacy, it is worth observing here that the argument as to commodification can and has been made across both types of surrogacy, as Radin has suggested, the “double bind” of surrogacy is that “both commodification and non-commodification may be harmful”: Margaret Radin, Contested Commodities (Harvard University Press, 1996) 52.

The same view was taken of gametes.

Lauren Hall, “Biotechnology and the Problem of Liberal Democratic Governance” (2009) 38 Perspectives on Political Science 167. While referring to biotechnology, I believe her assertions apply to surrogacy.

Margaret Somerville, Submission to Legislative Council Standing Committee on Law and Justice, Inquiry into Legislation on Altruistic Surrogacy in NSW, 6 September 2008.

	Given this transformative potential of the practice, it is noteworthy that in almost 40 years no surrogacy convictions have been recorded in Australia. In the single case where a fine was imposed, the facts failed to reveal a surrogacy arrangement (albeit one which was captured under the then Surrogate Parenthood Act 1988 (Qld)). In that 1993 case, a medical practitioner, Mrs White, was fined $2,000 and placed on a good behaviour bond for facilitating altruistic surrogacy. Today the facts of this case would not be considered surrogacy. Indeed, in the decision, Magistrate Black stated:

Brown, Willmott and White have pointed to three prosecutions in Queensland in relation to surrogacy as the only recorded prosecutions in Australia: see Catherine Brown, Lindy Willmott and Benjamin White, “Surrogacy in Queensland: Should Altruism Be a Crime?” (2008) 20 Bond LR 1. There may be more: see “Couple Tried to Sell Baby”, The Sydney Morning Herald, 13 January 2001, 4. Also, in 1991, while two women were charged in relation to surrogacy, the magistrate dismissed the charges without recording a conviction “even though it was conceded that one of the women had agreed to bear a baby for another woman for a fee of $10 000”: see “The Question of Legal Surrogacy”, The Sydney Morning Herald, 9 July 1993, 10.

I agree that it is difficult to equate the actions alleged against Dr White with a general interpretation of surrogacy. It would seem that surrogacy would require the formation of an agreement, perhaps the prescribed agreement in the words of the legislation, prior to the conception of the child.

Wardrope v White (unreported, Magistrates Court, Queensland, Criminal Jurisdiction, No 978-9 of 1993, 25 October 1993).

The case involved two already pregnant women, Fiona Anderson, a young girl and a second woman, an undercover pregnant police officer who was “acting incognito”, presenting at the practice of Mrs White unsure about continuing their pregnancy. In Ms Anderson’s case, the doctor stated that she “knew someone who would love to adopt a baby who can’t have children” and suggested she could get $10,000 but to ask for $5,000. The police officer was “offered money for a holiday and also some jewellery”. This case is the only instance where a penalty has been imposed under surrogacy legislation in Australia. There have been few attempted prosecutions and failure to pursue criminal sanctions is evident in high-profile custody cases concerning surrogacy such as Re Evelyn. Re Evelyn was the first Australian case where the Full Court of the Family Court determined legal parentage, following a dispute over the custody of a child after the breakdown of a surrogacy arrangement. As such, the case was high profile and widely reported. It concerned a couple from Queensland – subject to the State criminal laws. The Court applied the traditional family law test of the child’s “best interests” to place Evelyn with the South Australian surrogate mother. There was no prosecution of the Queensland couple under the then operational s 3 of the Surrogate Parenthood Act 1988 (Qld).

Wardrope v White (unreported, Magistrates Court, Queensland, Criminal Jurisdiction, No 978-9 of 1993, 25 October 1993) 5.

Wardrope v White (unreported, Magistrates Court, Queensland, Criminal Jurisdiction, No 978-9 of 1993, 25 October 1993) 4.

Wardrope v White (unreported, Magistrates Court, Queensland, Criminal Jurisdiction, No 978-9 of 1993, 25 October 1993) 6.

Re Evelyn (1998) 145 FLR 90.

	This absence of criminal prosecutions is foreshadowed by the earliest surrogacy law reform inquiries. For example, in 1988 the New South Wales Law Reform Commission inquiry into surrogacy observed that with respect to criminal law “its effectiveness is questionable”, noting in its final report that: 

New South Wales Law Reform Commission, Artificial Conception, Discussion Paper No 18 (August 1988) 119.

many of the significant issues involved in the practice of surrogacy are not amendable to control by law … There are many who urge that the only effective way to prevent growth of the practice is to enact a total statutory prohibition. To these people we respond, as we did in the discussion paper, that the law is a very blunt and inappropriate instrument by which to mould social values. In particular the criminal law should be used sparingly for the purpose of changing or controlling social habits.</blockquote>

New South Wales Law Reform Commission, n 32, 32.

	Such views have been recently reiterated by other Australian inquiries, such as in the Report of the Queensland Taskforce on Women and the Criminal Code, which stated that “despite the inherent complexities in, and social discomfort with, surrogacy arrangements, criminal prohibition, as we have now, is not the solution”. 

Queensland, Taskforce on Women and the Criminal Code, Report of the Taskforce on Women and the Criminal Code (2000) 298, cited in Brown, Willmott and White, n 26, 2.

	However, even in the absence of prosecutions and convictions, criminal law operates to great effect. Criminal law contributes to the creation of norms – and in doing so, can have great impact and can cause great harm. It results in Australians travelling to pursue surrogacy to evade restrictions in their home jurisdiction. This fact is well known to government:

Herbert Krimmel, “Can Surrogate Parenting Be Stopped? An inspection of the Constitutional and Pragmatic Aspects of Outlawing Surrogate Mother Arrangements” (1992) 27 Val UL Rev 1, 2.

Richard Storrow, “Assisted Reproduction on Treacherous Terrain: The Legal Hazards of Cross-border Reproductive Travel” (2011) 23 Reprod Biomed Online 538, 542.

In an area of socio-medical legislation of such significance to affected individuals the diversity of laws undermines fair implementation – people will travel to where the laws best suit their plans, often at significant cost, inconvenience and increased medical risk to the mother and child.

Social Development Committee, Parliament of South Australia, Inquiry into Gestational Surrogacy, Report No 26 (13 November 2007) 25.

	Storrow observes that the symbolism of criminal law is embodied in the use of pejorative language, which not only results in immediate frustration and disappointment for those individuals who wish to use surrogacy but casts people who evade the laws through travel as morally degenerate and even a national threat.  

Joan Callahan (ed), Reproduction, Ethics, and the Law: Feminist Perspectives (Indiana University Press, 1995) 27. Storrow, n 36, 542-543.

	This, in turn, impacts law reform. The evolution of the Australian regulation of binary surrogacy is a case in point. We accept that the two practices differ, when in reality the nub of both altruistic and commercial surrogacy is the identical issue of the exchange. In both “types” of surrogacy, the essence of the practice, and indeed what renders it different from any other form of ART, is the intended creation of a child for another with the intention of handing that child on at birth. This exchange is rendered non-important in the current regulation of altruistic surrogacy through cloaking the practice with normative values of family creation. Evidence of this being that surrogacy is legalised in Australian jurisdictions only when it closely emulates and even replaces “ordinary” adoption. Australian regulation thus acts to marginalise the centrality of the exchange relationship when applied to altruistic surrogacy – as that most closely emulates adoption and traditional means of family formation – however, regulation acts to amplify the aspect of exchange when criminalising commercial surrogacy. 

Of course, not all aspects of such a regulatory approach are wrong. For example, Australian jurisdictions have accepted the woman who gives birth as the mother. This means we have largely been spared the debate over gestational versus traditional surrogate motherhood and the subsequent discussion as to whether a surrogate mother should be the legal mother in one circumstance and not the other. Further, in Australia, it is accepted in legislation (although never tested at common law) that surrogacy contracts will be unenforceable and case law has confirmed that Australian courts will look to the best interests of the child to determine custody issues: M Field, “Reproductive Technology and Surrogacy: Legal Issues” (1992) 25 Creighton L Rev 1589, 1593.

There are arguments against this such as surrogacy (unlike adoption) is a chance to have a genetic child – it has been described as an “end of road measure”: see A Nakash and J Herdiman, “Surrogacy” (2007) 27 J Obstet Gynaecol 246, 250.

	It is ironic then that the current regulatory approach crystallises the economic possibilities of surrogacy in two main ways. First, by encouraging the use of overseas surrogacy services by Australians. When individuals are “forced” to use informal or even illegal mechanisms this may:

Kristin Lozanski, “Transnational Surrogacy: Canada’s Contradictions”(2015) 124 Soc Sci Med 383.

exacerbate the very problems that motivate opponents of surrogacy to oppose the practice: surrogates found through informal means are unlikely to receive counselling or to be well screened; they may indeed be young, poor or emotionally disturbed and thus, ripe for exploitation. 

Lozanski, n 41, 155.

	Secondly, prohibitions on payment for surrogacy render money central to the practice. By focusing upon (an absence) payment to the surrogate mother:
the surrogacy contract is presented as a womans’ contract; women are now seen as the parties to the contract. The question of men’s demand for the service is thus obscured, together with the character of the “exchange” that takes place.  

Christine Overall, Ethics and Human Reproduction: A Feminist Analysis (Allen & Unwin, 1987) 214.

	Thus participants are constructed primarily as women who are motivated by narrow cost-benefit considerations. The point of regulatory focus becomes one upon what the surrogate mother receives as a benefit or harm, and in doing so, marginalises the role and any conversation surrounding protections to other parties in the exchange. This extends to a lack of articulation as to third parties, such as agencies, clinics, health and legal professionals, and also a failure to identify transnational regulatory practice, such as the appropriateness of Australian fertility clinics operating in secondary jurisdictions. 
	In conclusion, the criminal law acts to construct “good” and “bad” surrogacy, privileging altruistic surrogacy over commercial surrogacy so as to create and enforce a hierarchy of surrogacy. As long as criminal laws operate to penalise the parties to the arrangements and third party facilitators, the investigation of commercial elements of the practice will be shut down. Individuals labelled as deviant will be reluctant to come forward to promote or discuss commercial surrogacy, particularly if they face prosecution. Surrogacy law reform will continue to begin from a narrow premise which invites retention of the existing legal framework – and any existing inequality within it. Further the criminalisation of commercial surrogacy means that when this norm is breached, the practice of surrogacy itself is not subject to question but rather the breaching of the norm. To continue to adhere to an unrealistic and unrepresentative set of assumptions about surrogacy will affect our perception and resolution of problems. Criminal law has created and sustains a narrative of an exploitative practice of surrogacy that must be prevented at all costs, rather than one which may also be construed as a loving practice that is to be cared for by the state. In creating this binary division, the regulation of surrogacy eliminates the potential of a holistic approach to the practice and reduces any potential regulation has to be safe, kind and beneficial. 

This then is able to ignore evaluating any existing international research which demonstrates an absence of harm of the practice.

Marsha Garrison, “Surrogate Parenting: What Should Legislatures Do?” (1988) 22 Fam LQ 149, 154.

For a comment on the gendered nature of law reform generally, see Reg Graycar and Jenny Morgan, “Law Reform: What’s in it for Women?” (2005) 23 Windsor YB Access Just 393.

Martha Fineman, “Making Dependency: The Political Role of Family Rhetoric” (1995) 81 Va L Rev 2181. Note that Fineman was here observing “family” more generally.

Debora Spar and Anna Harrington, “Building a Better Baby Business” (2009) 10 Minn JL Sci & Tech 41, 69.

The altruistic and commercial surrogacy “fiction”
The existing hierarchy of surrogacy is a legal fiction. This article argues here that the current regulatory framework creates false choice between two types of surrogacy. It discusses the role of the Australian courts in transnational surrogacy arrangements, and argues that the courts effectively complete transnational commercial arrangements, rendering the operation of criminal law in this area to be a legal irrelevance. It then examines the legislative distinction between altruistic and commercial surrogacy in Australian jurisdictions, observing that the current tolerance for altruistic surrogacy is in reality an acceptance of the exchange relationship that is embodied by both altruistic and commercial surrogacy. 
The courts 
As surrogacy grows in popularity and international commercial opportunity, the application of Australian criminal law becomes more obviously ineffectual. Decisions of Australian courts illustrate this point. Courts allow application of commissioning parents for parental orders where the surrogacy arrangement was transnational and commercial. There have been no resulting prosecutions and no preventative measures placed upon such individuals being granted such orders. In the only decisions recognising the existence of criminal law, Watts J in the Family Court of Australia referred two Queensland surrogacy cases, which apparently offended the extraterritorial provisions of the former Surrogate Parenthood Act 1988 (Qld) to the Director of Public Prosecutions. Prosecutions were not pursued in either case. 

Applications come to the Family Court for parenting orders under s 64C of the Family Law Act 1975 (Cth). Such orders apply in circumstances where the law fails to recognise a person as a legal parent. Allowing the Family Court to make a parenting order in favour of such a person, the basis for making such an order is that the applicant is a “person concerned with the care, welfare or development of the child”: see s 65C(c).

Dudley and Chedi [2011] FamCA 502; Findlay and Punyawong (2011) 46 Fam LR 302. The extraterritorial aspect of these cases and criminal law is discussed in Anita Stuhmcke, “New Wine in Old Bottles and Old Wine in New Bottles: The Judicial Response to International Commercial Surrogacy in the United Kingdom and Australia” in Kirsty Horsey (ed), Revisiting the Regulation of Human Fertilisation and Embryology (Taylor & Francis, 2015).

In each case, the applicants had applied to the Family Court for orders under the Family Law Act 1975 (Cth) for parental responsibility and for the children to live with them at their home in Queensland. In each case, the Court examined whether the orders sought by the applicants were in the children’s best interests and made orders for the children to live with the applicants and for the applicants to have equal shared parental responsibility for making decisions about both long-term and day-to-day issues in respect of the children.

	Judicial decisions are an important mechanism through which the law operates. Rice and O’Reilly characterise the approach of the Australian Family Court in this area as one where “the best interests of the child have been prioritised above that of state law”. This approach completes commercial surrogacy arrangements and thus largely avoids difficult judicial decision-making aspects of transnational surrogacy such as children being born stateless or with different jurisdictions recognising different legal parents, where courts have refused legal recognition of the parent-child relationship or refuse to bestow citizenship upon a child. 

Anne-Marie Rice and Louise O’Reilly, “The Surrogate’s Progress” (2012) 32 Proctor 21, 23.

See Jenni Millbank, “Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy” (2013) 27 AJFL 135.

Re X (Foreign Surrogacy) [2008] EWHC 3030.

See Re C (A Child) [2013] EWHC 2413; Re K (Minors) [2010] EWHC 1180.

Richard Storrow, “Travel into the Future of reproductive Technology” (2010) 79 UMKC L Rev 295, 301.

	In all published decisions, Australian courts grant the orders sought by the intending parents in full awareness of the contradiction this poses for public policy. As stated by Johns J in Green-Wilson and Bishop: 

Includes O’Connor and Kasemsarn [2010] FamCA 987; Dennis and Pradchaphet [2011] FamCA 123; McQuinn and Shure [2011] FamCA 139; Ronalds and Victor [2011] FamCA 389; Edmore and Bala [2011] FamCA 731; Lowe and Barry [2011] FamCA 625; Dudley and Chedi [2011] FamCA 502, [32]; Findlay and Punyawong (2011) 46 Fam LR 302; Mason and Mason [2013] Fam CA 424; Ellison and Karnchanit (2012) 48 Fam LR 33.

To do otherwise would be to elevate public policy considerations (as to the efficacy or otherwise of commercial surrogacy arrangements) above a consideration of the welfare of children born of such arrangements. In my view, the interests of the child must outweigh such public policy considerations.

Green-Wilson and Bishop [2014] FamCA 1031, [44] (Johns J).

	Judges openly acknowledge that such cases raise global issues of power and vulnerability, as stated by Thornton J in Cowley and Yuaves:

Mason and Mason [2013] FamCA 424.

I agree with the level of disquiet which has been expressed by the judges of this Court because of the prospects of the potential abuse of these types of proceedings for ulterior motives such as the international trafficking of children. The disquiet expressed has also related to concerns about organisations or agencies profiting from the poverty and other problems that women in developing countries such as Thailand might face. 

Cowley and Yuvaves [2015] FamCA 111, [24] (Thornton J). See also Ryan J in Mason and Mason [2013] FamCA 424, [4], where he noted that the consent of the surrogate mother must at times be assumed: “It is also troubling that this 29 page document is written in English. It is signed by the applicant and, because she is illiterate in English and Hindi, the mother’s attestation is her thumb print. There is nothing in the document which suggests that before the birth mother signed it that it was read and translated to her.” “The Court is raising these issues because it is concerned that it needs to be satisfied that this child is not caught in that web of horror and intrigue”: Fisher-Oakley and Kittur [2014] FamCA 123, [7] (Cronin J).

	Practically, and legally, courts may have little choice. For example, in Ellison and Karnchanit, Ryan J granted the applicants a certificate under s 128 of the Evidence Act 1995 (Cth) to enable the parties in the international commercial surrogacy case to speak freely. In doing so, Ryan J observed the difficulty that the court faces when balancing public policy with the welfare of the child: 

This certificate ensured that evidence could not be used in criminal courts.

 [o]f course imprisonment of the applicants would see two much loved children inexplicably separated from the only people they have known as parents. The potential for long term psychological and emotional harm to the children were such an event to come to pass is obvious. 

Ellison and Karnchanit (2012) 48 Fam LR 33, [3].

	In completing transnational surrogacy arrangements, courts are involved in cases that involve payments to surrogates which extend beyond reasonable expense as allowed under domestic legislation (see below). This consequence follows from what is an inadequate legal categorisation of surrogacy in law. Family law begins when surrogacy is successful in producing a child, ART laws apply to in vitro fertilisation or similar processes; and criminal law to some parts of surrogacy and not to others. Thus the law treats surrogacy in an ad hoc format, as a practice which is not quite family, not all criminal, not fully ART and so on. The unfortunate outcome is a confluence of laws, meaning that it is possible to construe the approach of the courts not as being driven by the best interest of the child but rather as approving of a form of “altruistic commerce” in surrogacy. It may even be suggested that, in affirming international commercial arrangements, the Australian courts are approving commercial payment of surrogate mothers, agencies, medical practitioners and lawyers. 

Stuhmcke, n 50.

The Legislation 
At first blush, it appears unthinkable that Australian legislation (apart from criminal provisions) does anything but entrench the commercial and altruistic distinction. The criminal prohibitions across Australia vary, but all attempts to grapple with commercial payments generally defining the concept by what it is not – “reasonable expenses”. 

Jenni Millbank, “Rethinking ‘Commercial’ Surrogacy in Australia” (2014) 12 J Bioeth Inq 477.

	On the other hand, some Australian jurisdictions envisage that limited compensation for “reasonable expenses” will be allowable for altruistic surrogacy. Three States expressly recognise the intended parents” obligation to reimburse the birth mother for reasonable expenses associated with pregnancy and birth. For example, s 10 of the Surrogacy Act 2010 (Qld) states that a commercial surrogacy arrangement is one where a person:

Surrogacy Act 2010 (NSW) s 6(2); Surrogacy Act 2010 (Qld) s 15(2); Surrogacy Act 2008 (WA) s 7(3).

receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person:
(a)	agreeing to enter into or entering into the surrogacy arrangement; or
(b)	permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or
(c)	consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.Section 11 provides that:
 [a] birth mother’s surrogacy costs are the birth mother’s reasonable costs associated with any of the following matters:
(a)	becoming or trying to become pregnant;
(b)	a pregnancy or a birth;
(c)	the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.
Thus the approach is to break down payments across categories of reimbursement – so that in Queensland, a birth mother can receive payments for the reasonable costs of counselling for becoming or trying to become pregnant, or for the pregnancy or a birth, or for legal or medical expenses. Under s 10, this is not categorised as a “payment, reward or other material benefit or advantage” and is therefore not commercial surrogacy.

For a longer discussion of Queensland surrogacy legislation, see Pip Trowse, “Surrogacy – Competing Interests of a Tangled Web?” (2013) 33 Qld Lawyer 199, 204.

	However, while such provisions act to cleave commercial and altruistic surrogacy, the basic premise of the regulation refutes such difference. In compensating surrogate mothers for reasonable costs, the legislative provisions recognise that surrogacy is an inherently transactional relationship. Surrogacy is a relationship of exchange. The criticisms of commercial surrogacy based on commodification and notions of exchange have been so enduring and normatively powerful that we have largely neglected to identify that in allowing reasonable costs for altruistic surrogacy – or indeed any form of the practice – that the law is recognising and enforcing the exchange relationship which exists in surrogacy. Indeed it is this exchange which differentiates surrogacy from adoption and from baby selling. Ironically, then, the exclusion of payment for benefit of the surrogate mother is used as one of the major arguments to criminalise commercial surrogacy, yet the current regulation of altruistic surrogacy allows payment for benefit for intending parents. Of course, in any exchange benefits and costs are distributed. Thus having a contract drawn up between the parties for profit, whereby the “the surrogate mother must agree to give up her child” and which requires her “not to smoke, drink or take drugs”, does not render the practice of surrogacy any different – rather it is the means of completing the practice that changes. 

While still allowing payments of upwards of $50,000 in an altruistic surrogacy arrangement in Australia, see Millbank, n 5.

DL Spur, “For Love and Money: The Political Economy of Commercial Surrogacy” (2005) 12 Review of International Political Economy 287.

Susan Dodds and Karen Jones, “Surrogacy and Autonomy” (1989) 8 Bioethics News 6.

Dodds and Jones, n 69.

	It follows that the issue of “how much is too much” to pay a surrogate mother has stunted the effective regulation of surrogacy. Indeed this argument may now be cast to the annals of history. Today Australian law recognises the payment of reasonable compensation to a surrogate mother, explicitly endorsing and recognising surrogacy as an exchange relationship. This step signals a willingness to begin to explore what elements of commodification we can live with. Or to put this another way, it involves accepting that irrespective of monetary payments “every single woman who involves herself in the process is motivated by altruism”. Epstein has characterised altruism in the context of organ donation as “altruism is best understood as supplying benefits to other as a net cost to oneself”. The Australian States that require reimbursement of expenses reject this form of altruism, acknowledging intermediate possibilities that nonetheless involve monetary payments being provided to the surrogate mother. In doing so, it can be argued that the Australian position rejects the categorisation of altruistic surrogacy as a gift relationship and contract surrogacy as non-gift and thus recognising that surrogate motherhood should not be organised according to the norms of the gift relationship. This approach has merit. Indeed, commercial surrogacy is not always easy to identify. Such a conundrum as to surrogacy payments and what may be reasonable expenses is not surprising in this area. As observed by Spar and Harrington: 

Kathleen Simmonds, “Reforming the Surrogacy Laws of Australia: Some Thoughts, Considerations and Alternatives” (2009) 11 FJLR 97, 114.

Richard Epstein, “The Human and Economic Dimensions of Altruism: The Case of Organ Transplantation” (2008) 37 J Legal Stud 459, 463.

Stuhmcke, n 50, noting: “While this distinction is irrelevant in countries where commercial and altruistic surrogacy are both ‘legal’ such as India and certain states in the United States, it is highly relevant in jurisdictions such as South Africa and Australia where commercial surrogacy is a criminal offence while altruistic surrogacy is allowed. It is also a critical distinction in jurisdictions where the practice is not criminal yet not facilitated such as the United Kingdom.”

Spar and Harrington, n 48, 43.

 [A]ssisted Reproductive Technology (“ART”) is one of the few markets in the world in which products and services are regularly exchanged for money – often very large amounts of money – where buyers and sellers on both sides of the exchange remain loath to acknowledge that they are engaged in a commercial transaction. 

A recent Australian example of this is Clark v Marcourt (2013) 253 CLR 1 to do with transfer and payment by a fertility clinic for frozen semen.

	Further, this rhetoric of a binary distinction is supported by Australian surrogacy legislation framing surrogacy determinations as an issue for the courts. For example, under the Surrogacy Act 2010 (Qld), a parentage order under s 22 can only be made where the Family Court is satisfied the surrogacy arrangement was not a commercial surrogacy arrangement under s 22(2)(e)(vi). Of course, judged on the results of the international surrogacy cases discussed above, the outcome for an uncontested surrogacy case where payments were made of a commercial nature (whatever that may be) are highly unlikely to interfere with the granting of a parentage order. The normative importance of placing the resolution of surrogacy with the family court is critical. It acts to confirm the “difference” of the exchange in commercial surrogacy as opposed to altruistic surrogacy when there is no difference – the exchange in surrogacy is for the child. 

Here, see the reference to the “best interests of the child” in surrogacy legislation: Surrogacy Act 2010 (Qld); Surrogacy Act 2010 (NSW); Parentage Act 2004 (ACT); Assisted Reproductive Treatment Act 2008 (Vic); Surrogacy Act 2012 (Tas); Family Relationships Act 1975 (SA); Surrogacy Act 2008 (WA).

	The convergence of family law with the altruistic surrogacy provisions is arguably a significant factor in recent surrogacy law reform. Criminal law is aligned with commercial surrogacy, whereas enforcement of the surrogacy agreement for altruistic surrogacy rests with family courts. Hence the fundamental premise of surrogacy being an exchange relationship is dissolved. Indeed, the narrative of altruistic surrogacy casts the role of the surrogate as one of appearing in the family as a type of fairy tale godmother and then disappearing to allow the family to be as normal as possible, much like dominant norms of traditional adoption of children. This binary model of surrogacy hides the fact that both forms of surrogacy are the same – there is no difference between them. The stages a surrogate mother steps through are identical – pre-care, conception, pregnancy, birth, post-care – the only difference being that one woman is compensated more than another for the process. As Szoke observes, the practice of surrogacy is such that it: 
involves a continuous and arguably intimate relationship over the period of a year or more. A pregnancy must be achieved, a baby gestated, medical checks undertaken, a baby delivered and then handed over. The wellbeing of the surrogate after the birth may be a consideration. The ability to confidently relinquish a child may be difficult.

Szoke, n 18, 60.

Conclusion 
Regulation is a human and technical process – it is essentially political. The current regulation of surrogacy has evolved from a binary construction of the practice. The inference being that to achieve acceptable value choices and to reduce risk of harm, two types of surrogacy must exist where one is monetary and criminal and the other is free and allowable. This article rejects this regulatory approach. The dominant images that drive legal discourse in this area do not match up to the reality of the practical and effective regulation of surrogacy. Indeed, the existing rhetorical solution of a regulatory divide between commercial and altruistic surrogacy not only ignores the current legal, social and medical reality of the practice of surrogacy but has resulted in: ongoing regulatory failure of criminal law; the exponential growth of surrogacy overseas; and even the inference that the Australian regulatory framework actually promotes exploitation and illegal activity. A further critical problem with the current regulatory framework is that it is unprincipled in application and thus reactive to sensationalised cases, such as Baby Gammy. Indeed it can be argued that such a controversial international commercial surrogacy case does not evidence the ongoing exploitative nature of surrogacy, rather it confirms the failure of the existing binary Australian regulatory framework. 

Judith Ireland, “Tony Abbott Says the Case of Baby Gammy is a ‘Tragic’ Situation”, The Sydney Morning Herald, 5 August 2014, stating: “Foreign Minister Julie Bishop has asked her department to work with the Attorney-General and Immigration departments to come up with a federal government response to the case of baby Gammy. Ms Bishop said the three departments were ‘considering what response the Australian government should provide’ to the ‘tragic situation’. ‘We’re looking at it from every angle, in terms of foreign affairs, immigration and the Attorney-General's office,’ she told reporters in Canberra on Tuesday.”

For an alternative view, see Renate Klein, “Baby Gammy has Shown the Need for Debate on Surrogacy: Commercial Surrogacy is a Capitalist Enterprise that Commodifies Women”, The Age, 20 August 2014 <http://www.theage.com.au/comment/baby-gammy-has-shown-the-need-for-debate-on-surrogacy-20140819-105pfx.html>.

	Surrogacy has become institutionalised in Australia and should be regulated. Surrogacy is complex and multifaceted and the payment of money or reimbursement of expenses or absence thereof should be just one factor – rather than the defining feature of the practice. Going forward into any new regulatory structure terminology will be important. Legal terminology is critical; it creates, sustains and reinforces a binary approach to surrogacy. Indeed, it is impossible to have a debate about surrogacy without using the terminology of commercial and altruistic. The use of binary language has powerful consequences. Recasting surrogacy in terms such as “compensated” or “uncompensated” or terms which it may be possible to construe as binary, such as “recompense”, should perhaps be avoided. Instead, terminology that promotes a more holistic approach, such as “satisfaction” or “restitution”, may be more useful in removing a fictional hierarchy which has been created by law and does not reflect the reality of the practice of surrogacy. 

Note here that in 1990 the Australian Health Ministers Council, in rejecting the suggestion of the National Bioethics Consultative Committee in 1990 to create surrogacy agencies were concerned that the regulation  of surrogacy in a facilitative way would institutionalise the practice see, Szoke, n 18, 61.

Christine Hauskeller, “Science in Touch: Functions of Biomedical Terminology” (2005) 20 Biology and Philosophy 815.

Of course, in itself an incorrect term.

	We should be deeply sceptical of the existing binary division that has facilitated policy development without evidence-based research. Current regulation reinforces a fiction that, while third parties may be brought into the reproductive mix, the central concept of a family remains and will simply fold back into place after the surrogate has handed the child on. Quite simply, the supposition is that because the “family” works, then a form of surrogacy that closely replicates the family will also work. 

Millbank, n 5.

There are a number of long-term studies now available, see Susan Imrie and Vasanti Jadva, “The Long-term Experiences of Surrogates: Relationships and Contact with Surrogacy Families in Genetic and Gestational Surrogacy Arrangements” (2014) 29 Reprod Biomed Online 424.

	To date, regulatory responses to surrogacy in Australia have failed. The fact that surrogacy has been the subject of regulatory failure for over 30 years renders the need for good regulation even more imperative. There are limitless alternatives. For example, there could be more frequent use of soft law; different economic modelling could be applied to measure success; or recognition that infertility treatment may potentially in and of itself be exploitation; and criminal law could still be used to prevent certain forms of behaviour, such as fraud or misrepresentation, which may equally apply to all surrogacies.

Jennifer Damelio and Kelly Sorenson, “Enhancing Autonomy in Paid Surrogacy” (2008) 22 Bioethics 269.

Swapnendu Banerjee, “Gestational Surrogacy Contracts: Altruistic or Commercial?” (Working Paper id:1811, eSocial Sciences, 2008). See also Richard A Posner, “The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood” (1989) 5 J Contemp Health Law Policy 21.

Derek Morgan, Issues in Medical Law and Ethics (Cavendish, 2001) 63.

	However, as noted in the introduction, this article suggests three reforms which will lead to a more principled approach to surrogacy: first, to decriminalise the practice of commercial surrogacy and instead regulate the practice holistically; secondly, to construct surrogacy as a medical choice akin to other ART practices; and finally, to recast the moral perspective for regulation away from the judgmental view that surrogacy transfers children by agreement between individual parents towards a facilitative framework based upon growing evidence as to the absence of harm and risk, and the existence of benefit and happiness in studies of parties to surrogacy – the surrogate mother, the intending parents and the children born from such arrangements. In 1994, Ragone observed that:

Edgar Page, “Review Article: Warnock and Surrogacy” (1986) 12 J Med Ethics 45, 46.

Janice Ciccarelli, “Navigating Rough Waters: An Overview of Psychological Aspects of Surrogacy” (2005) 61 J Soc Issues 21 (also includes overview of intending parents).

the tendency to cast surrogate’s motivation into dichotomous, often antagonistic categories such as either altruism or monetary gain may reveal more about American culture than it does about surrogacy itself. 

Cited in Eyasu Tamen, “The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood” (2008) 67 Soc Sci Med 1104, 1110.

Twenty years later the application of criminal law to commercial surrogacy agreements reflects poorly upon Australian culture.