A special issue on commercial surrogacy features in the December 2015 issue (Vol 23, Pt 2) of the Journal of Law and Medicine.
In an introductory note to the special issue, Chief Judge John Pascoe of the Federal Circuit Court of Australia comments that the:
fundamental issue for any community in relation to surrogacy is the sanctity of human life and how the community deals with the human rights of those affected, be they adults or children, or the unborn. The problem that confronts any community is that commercial surrogacy has the potential to commodify the creation of life and the children born of it.
It is therefore essential, Chief Judge Pascoe says, that the law responds in an effective way to commercial surrogacy, addressing the needs and requirements of the disparate and sometimes conflicting parties to such arrangements, including surrogate mothers, donors of genetic material, donor-conceived children and fertility clinics. Any response by the law to commercial surrogacy needs to recognise the fundamental premise in the United Nations Convention on the Rights of the Child that the best interest of the child is unequivocally paramount.
These issues, and more, are explored in the collection of scholarly, peer-reviewed guest editorial and articles that form the special issue, which together provide an important contribution to the ongoing debate on commercial surrogacy.
Setting the scene is the guest editorial by Ronli Sifris, Karinne Ludlow and Adiva Sifris entitled “Commercial Surrogacy: What Role for Law in Australia?” in which the authors consider the law and practice governing surrogacy in Australia. While there is little consistency or uniformity between Australian jurisdictions, the authors note that a key common element is the prohibition of commercial surrogacy. With a human rights approach in mind, the authors argue that the human rights of all parties are best protected through appropriate regulation, rather than prohibition, of such arrangements.
Similarly, in her article entitled “The Regulation of Commercial Surrogacy: The Wrong Answers to the Wrong Questions”, Anita Stuhmcke argues that criminalisation of commercial surrogacy arrangements in Australia is a blunt and undesirable approach to dealing with such arrangements. She argues that a principled, holistic and evidence-based regulatory response is needed.
Jenni Millbank looks at cross-border surrogacy and egg donation arrangements, including egg and sperm importation, in her article entitled “Responsive Regulation of Cross-border Assisted Reproduction”. She considers how Australian regulators might constructively respond to the dynamic and complex challenges posed by cross-border assisted regulation, especially in view of the absence of detailed data on Australian engagement in cross-border reproduction.
In “Commercial Surrogacy and the Human Right to Autonomy”, Ronli Sifris focuses on the human right to autonomy in assessing whether prohibitions on commercial surrogacy violate the right of a woman to choose to be a surrogate.
With mitochondrial donation in mind, Karinne Ludlow in “Genes and Gestation in Australian Regulation of Egg Donation, Surrogacy and Mitochondrial Donation” considers the issues at play in determining legal parentage in such cases. She argues that the legal parentage of intending parents in such arrangements should be recognised at the birth of the child as opposed to being required to go through the emotional and economic burden of seeking court approval to transfer legal parentage after the child’s birth.
In her article “The Family Courts and Parentage of Children Conceived through Overseas Commercial Surrogacy Arrangements: A Child-centred Approach”, Adiva Sifris addresses the dilemma confronting Australian Family Courts when “commissioning” parents seek a parentage order on their return to Australia with a child born as a result of a commercial surrogacy arrangement.