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Duncan Ranton on the Problems People Face when it comes to Surrogacy

A coherent international framework applying to Surrogacy is desperately required.  We see this demonstrated daily. With depressing frequency, there are reports from here and overseas about problems those considering surrogacy face due to the fickle management of surrogacy arrangements, depending on the country involved.  By way of example in a recent blog I looked at reports from Taiwan (where surrogacy remains illegal), about nationals who seek to use surrogacy to complete their families being driven abroad.South of the equator, in Australia, the legal position is even more unsatisfactory.  This is because, for constitutional reasons, each State is free to legislate on child protection questions (like surrogacy and adoption).  The result is a differing approach to surrogacy in each State or Territory.  Tasmania bans all surrogacy (although it passed a Bill last month to address this blanket prohibition).  The Northern Territory has no legislation governing surrogacy arrangements.  Until recently, altruistic surrogacy was illegal in Victoria, Queensland and New South Wales (NSW).  Recent changes mean that altruistic, but not commercial, surrogacy is allowed in those States, and in Western and South Australia and the Australian Capital Territory.  The requirements for a valid surrogacy arrangement, and the procedures that apply, vary from State-to-State.  One might be forgiven for thinking this hotchpotch situation was the product of surrogacy being rare in Australia, and demand for reform therefore being negligible.  But this is not the reality.  There is a groundswell of support in Australia for commercial surrogacy and calls for the various State governments to look again at their respective legal mechanisms.  On 12 September 2012, The Australian carried an article about a presentation to be made in NSW by Dr Kim Bergman (a US-based surrogacy psychologist) and Stephen Page (a Brisbane-based family lawyer).  Bergman and Page were calling for the decriminalisation of commercial surrogacy, and were in Sydney to make their case to NSW MPs.  Page recounted his experience of Australian Couples having to move (prior to the decriminalisation of non-commercial surrogacy) to a State where altruistic surrogacy was legal.  Alternatively, they were paying up to AU$176,000 (£114,000) in the USA and about AU$76,000 (£49,000) in India to take part in commercial surrogacy arrangements, circumventing the local ban that way.Dr Bergman called for a dialogue on whether it was appropriate to decriminalise commercial surrogacy in Australia.  “We have in the US a viable ethical model for so-called commercial surrogacy that works and has worked for over 30 years,” he said.The call for a discussion on the ethics of commercial surrogacy is not restricted to Australia.  It is a conversation we ought to be having here, and which is also needed at an international level.  Focussing just on the domestic for now, is it right that surrogacy arrangements in the UK remain regulated by an Act of Parliament (the Surrogacy Arrangements Act 1985) rushed through without consultation to appease the then perceived public mood?  Almost three decades later, attitudes have evolved; they have progressed.  Surrogacy is no longer treated conceptually with the suspicion and mistrust it was.  Yet our local laws continue to force many abroad to fulfil their yearning to become Parents.  I believe we ought to be more concerned about an unregulated international surrogacy trade (with the potential for exploitation in particular of third world surrogate mothers) than with the legalisation of commercial surrogacy but on closely regulated and monitored terms. 

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