Vector Volume 11 Issue 2 - 2017

with an uncertain future.[11] Another case saw a baby left
stranded with no identity or legal papers for as long as two
years.[11] Fortunately, Australian laws allow a child born
from an international surrogacy arrangement to be given
Australian citizenship, provided that at least one parent
is an Australia citizen and a parent-child relationship is
proven with DNA testing, although other measures of
‘parent’ can be used. If ineligible, commissioning parents
may be required to apply for a permanent visa or an
adoption visa. Despite being lengthy and difficult for
parents to navigate, these processes and laws minimise
the risk of children born internationally via surrogacy
being left stateless.[12,13]
Australia’s current approach is to prohibit commercial
surrogacy because it is regarded as immoral, but is this
policy helping the situation or making it worse? At present,
Australians for whom altruistic surrogacy is simply not
feasible appear to be turning to transnational surrogacy.
In 2011, only 21 births by altruistic surgery were recorded
in Australia.[14] In the same year, it is estimated over 270
babies were born via transnational commercial surrogacy
arrangements.[6] Banning commercial surrogacy
domestically has created a transnational black market
of commercial surrogacy that does not protect the best
interests of the surrogate, the child, or the intended
parents; the process is expensive, risky, poorly regulated,
and is largely a profit-making exercise for overseas
surrogacy agencies. Despite being designed to prevent
exploitation, our current system might in fact ironically be
encouraging it.
Harm minimisation
Simply prohibiting a behaviour on the basis of its
supposed immorality is not necessarily an effective
strategy. Data shows that in Australia and overseas,
drug use and morbidity increased under policies of
prohibition, and decreased with decriminalization and
regulation.[15] Harm minimisation is a principle we see
being used more often in Australia’s approach to illicit
drug use and prostitution. It recognises that prohibition
can be counterproductive in achieving its overarching
goal of improving the lives of Australian citizens. Instead,
our laws regulate the potentially damaging behaviour or
substance in a way that realistically protects the people
involved. So why not apply a similar harm-minimization
approach to surrogacy? Given that our prohibitive model
is failing to protect Australian couples seeking surrogacy,
and instead funnelling business into exploitative
transnational surrogacy agencies, we should instead look
to harm minimisation to guide how we approach the issue
at hand. This could be best accomplished through the
decriminalisation of commercial surrogacy in Australia.
Decriminalisation and the establishment of a strictly
regulated system would better enable us to protect the
interests and rights of the intending parents, surrogates,
and children. But what should these regulations actually
look like?
A suggested solution
Ideally, a reformed system in Australia would be
carried out by a centralised institution that could oversee
the entire process, from psychological screening and
matching, to counselling, and support services. This
centralised institution could be national, state-run or notfor-profit.
Strict criteria of eligibility could then more easily
be applied, screening out individuals who are unsuitable
for surrogacy arrangements due to medical, social, or
psychological reasons. This assessment could draw on
existing assessment processes for adoption.[16]
The relationship between the surrogate and intending
couple appears to be the most crucial factor affecting
satisfaction with the experience and the likelihood of
conflict regarding parentage of the baby.[17] In fact,
some studies suggest the most common reason for a
surrogate to want to keep the baby is being unsure of the
commissioning couples ability to provide adequate care.
[17] With this in mind, matching surrogates and intended
parents with similar values and desired levels of contact,
12