Surrogacy arrangements have been a feature of family formation for centuries. However, their practice has not been embraced as an acceptable way of allowing infertile couples to form a family. The notion of a surrogacy arrangement raises concern about what could go wrong. Commercial surrogacy is not permitted in Australia. However, each of the states in Australia has a different policy response to altruistic surrogacy. This article reviews the potential roles which governments may play in the regulation of altruistic surrogacy. Proponents of altruistic surrogacy arrangements argue that regulation would minimise harm to the people who are involved in such arrangements, and offer some protections. Opponents argue that such regulation raises concerns about the role of government intervening in private arrangements, interrupting the relationship between a doctor and patient, and providing paternalistic protection of its citizens. Government intervention to facilitate surrogacy may also be seen to legitimise a practice which has a low level of community acceptance and understanding. This article reviews those concerns.
SURROGACY--ALL THE FEATURES OF A RELATIONSHIP THAT COULD GO WRONG?
Surrogacy is not a new practice. Many quote the biblical references to surrogacy. (Genesis) The private diaries of Winston Churchill's wife Clementine revealed that she offered to give the couple's fourth child to Lady Jean Hamilton, a close family friend, unable to conceive. (Telegraph, 2001) Despite the longevity of the practice, the responses to surrogacy are varied and complex. The public policy responses to surrogacy partly arise from the challenge to the traditional notions of family and procreation. There are also difficulties in differentiating the boundaries between regulation of private behaviour and public good. This article explores some of those issues, with a view to arguing that surrogacy should be regulated to reduce risk and to ensure that patients are informed and protected in their decision-making.
WHAT IS SURROGACY?
A woman agrees to bear a child which will be handed to another woman, and her husband or partner, to become theirs. This is surrogacy. There are two different forms of surrogacy. Traditional surrogacy involves the insemination of the surrogate with the commissioning husband's sperm (1). This may occur through sexual intercourse or through artificial insemination. The surrogate mother therefore has a genetic link to the child. IVF surrogacy occurs where an embryo is formed in vitro from the sperm and the egg of the commissioning couple, the would-be parents, and then transferred to the womb of the surrogate mother. In this case the resulting child is the full genetic child of the commissioning parents, and only has a link to the surrogate through the gestational process. Other variations to IVF surrogacy may occur where, for example, donor egg or donor sperm is used, or both, where one or both of the commissioning couple are infertile. In such cases it is possible to distinguish between the genetic parent (the donor), the gestational parent (the surrogate) and the social parents (the commissioning couple).
Surrogacy may be used for social reasons. For example, a woman may wish to avoid the physical effects of carrying a child. Medically indicated surrogacy may occur where the commissioning infertile woman does not have a uterus. She may still have functioning ovaries. In some cases the women may have a past history of both hysterectomy and bilateral salpingo-oophorectory which means she has neither uterus nor ovaries. In such cases donor eggs would be required. The requirement for surrogacy treatment is difficult to quantify in Australia. There is no central data collection on the number of children born as a result of surrogacy arrangements. Leeton, a strong advocate for IVF surrogacy, estimates that the number of cases in Australia where the woman has functioning ovaries but no functioning uterus and utilises a surrogate does not exceed 12 cases per year. …