I. PUBLIC RESPONSE TO OPTIONS FOR REFORM
3.1 The submissions received by the Commission have been diverse. They range from those which totally oppose the practice to others which are solidly in favour of it. There are also submissions which express a preference for totaI prohibition but are reconciled to accepting something less satisfactory because they regard total prohibition as impossible to attain. Others speak in favour of allowing the practice to continue but complain that poor outcomes can be expected while the law remains ambiguous.1 The reasons given for and against the practice are also disparate. They range from blanket and sometimes unexplained rejection, to wholehearted and equally unexplained acceptance of the practice.
A. Arguments in Favour of Surrogacy
3.2 Those who argued in favour of surrogate motherhood generally did so from the stance of the infertile commissioning couple. They pointed out that in many cases the use of a surrogate mother was the final resort of an infertile couple.2 The practice was seen as particularly appropriate for those, couples who had failed to achieve a pregnancy by any other means and for whom the alternatives offered by the artificial reproductive techniques were not available. There was support in the survey of public opinion, conducted on behalf of the Commission in May 1987, for use of surrogacy in these circumstances.3 A total of 51% of those interviewed were not opposed to the use of surrogacy to assist married couples who for medical reasons could not have children, but almost 80% rejected use of the practice for non-medical reasons.4
3.3 One person who responded to our request for information told the Commission of a family in which two children had been born by use of a surrogate, the first in 1870 and the second in 1900. The granddaughter of the younger child is now seeking to have a child by use of IVF surrogacy.5 This family is very much in favour of surrogacy and would extend both legal recognition and enforcement to the practice. We also heard of an arrangement carried out between close friends in which contact has been maintained between the two families throughout the five years since the child was born. Both the surrogate mother and the woman who received and is caring for the child reported that the arrangement was successful. However, neither was willing to recommend surrogacy as a general solution to the problem of infertility.6
3.4 The Commission also received submissions from two women who had acted as surrogate mothers with positive results and who lent their support to the practice as a means of providing children for infertile couples.7 One of these women told of an arrangement which was conducted with complete openness and pride in her family and in which she was continuing to enjoy access to the children born of the arrangement.8
3.5 Some argued that to restrict the use of surrogacy in any way is to impose constraints on the freedom of the individuals involved and to impinge upon their privacy. In particular it is argued that women should be free to use their bodies in whatever way they choose and that the decision to carry a child for another is something they should be free to do.9 Others argue that the child born of a surrogacy arrangement could be offered better prospects in life than if born into a normal household, because of the commitment to the child demonstrated by the commissioning couple when they seek out a surrogate mother.10
3.6 One person wrote to the Commission to express the view that “law reformers should attempt to minimise the discrepancy between what the law prescribes and what people feel entitled to do”.11 He thought people were prepared to accept a greater variety of life styles than the Commission had canvassed in the discussion paper and suggested that we recommend a course of minimum intervention consistent with the prevention of social harm. Where there was no evidence that substantial harm would be caused by the exercise of personal choice, freedom of choice should be permitted. Where there was no conflict between the parties, and no “evident significant danger” to the child “there is no case for interfering with whatever parenting arrangements have been voluntarily agreed to” , including. tile registration of “any number of persons as ‘parents”’. His conclusion was that “a law which fails to recognise all viable, ‘family’ arrangements cannot be said to be consistent with the best interests of the child principle”.12
B. Arguments against Surrogacy
3.7 The most consistent argument against the use of surrogacy concerned the potential the practice has to exploit the women and children involved in it.13 Those opposed to surrogacy on this ground did not distinguish between commercial and altruistic surrogacy. They saw as much potential for exploitation in unpaid as in paid surrogacy.14 The examples of exploitation given included cultural and ethnic discrimination,15 undue influence exercised by the commissioning father over his wife to gain her consent to the use of a surrogate, and the possible emotional pressure exerted by the family of an infertile couple on other members of the family to act as a surrogate or donor.16
3.8 Degradation and trauma suffered by the surrogate mother in carrying the child and transferring custody were mentioned by some.17 Others placed emphasis on the likely damage to the child’s self-esteem through being conceived from a transitory, extra-marital liaison.18 Several of the submissions suggested that the creation of a child under these circumstances was tantamount to the acceptance of slavery.19 Others concentrated on the tendency the practice had to demean the status of marriage and the natural family.20
3.9 Another argument which was constantly raised by those opposed to the practice concentrated on the perceived distortion of the welfare of the child principle involved in the legal recognition of surrogacy. The contention was that it could never be in the best interests of a child to be separated from its mother at birth. The interests being satisfied in a surrogacy arrangement were those of the commissioning couple and not the child. The child’s best interests could only be served by ensuring its birth into a stable family of which the birth mother was a part. Anything less, it was argued, underestimated the value to the child of its bonding to the birth mother.21
3.10 Another argument which was put to the Commission very forcefully drew on the experiences in the past of those mothers who had relinquished their children for adoption. Although it was acknowledged that many individual adoptions had been highly successful, the gravamen of these arguments was that the experiences of significant numbers of relinquishing mothers in adoption were so negative as to demand that more study be done on the effects of relinquishing a child on the mother, child and all other family members involved, before approval is given to the use of surrogacy as a recognised means of providing children for infertile people.22
3.11 Perhaps the strongest argument put to the Commission in opposition to surrogacy was that which sought to make a distinction between adoption and surrogacy. Many of the submissions pointed out that surrogacy entailed the deliberate creation of a child for the purposes of the commissioning couple, while in adoption the new parents ,imply took an existing child their care.23 It was argued that there was a difference in kind between the t-wo procedures which was often obscured by the commissioning couple's desire to have a chiId In one submission the point was made that both adoption and surrogacy involve a break in the link between child-bearing and child nurturing but, it was said, in surrogacy “this detachment ... is not undertaken for the good of the child, as is the case with adoption, but for the good of those who want a child”.24
3.12 In another submission the contrast was made between the adopting couple who altruistically raise someone else’s child as their own and surrogacy which “creates babies who would not have otherwise been born solely to meet the desires/needs of adults”.25 The comment was made: “There seems to be a slippage in the argument from desire for a child to need for a child to moral right to have a child to legal right to have a child to legal right to be provided with a child by whatever means are necessary.26 Some saw the effects of this process as the “dehumanising” of the reproductive process, saying that “the notion of using a woman to reproduce a child for someone else reflects a fundamental lack of humanity ... (t)he reproductive process becomes part of a transaction in which the mother is the production unit or, in some cases, just the incubator, the child is the product and the couple, the consumers or customers”.27
II. THE COMMISSION’S VIEW
3.13 The Commission has found itself in sympathy with many of those who would like to stop the practice of surrogate motherhood. We have been persuaded by the arguments against the practice more than by those advanced in its favour.
3.14 As we said in the discussion paper, surrogacy involves identifiable risks to the child, the surrogate mother and to the commissioning parents.28 It also holds risks for the families of all parties to the arrangement. The Commission is also concerned that early official acceptance of the practice may precipitate community attitudes to its use.
3.15 The objections the Commission has to surrogacy can be stated here quite briefly. We develop them in Chapter 4. We believe that the practice does not provide an acceptable answer to the problem of infertility. While we recognise the distress and disappointment felt by those unable to have a child by other means, we do not regard their needs as properly met by surrogacy. There are several features of surrogacy which make it unsatisfactory to fulfil this function:
- it involves the deliberate creation of new life for the purpose of alleviating infertility;
- the body of a woman is put to the service of the commissioning parties;
- the practice entails the planned separation of child and birth mother, at a very early age and permanently;
- it ignores the interests of other members of the families of the participants;
- both the woman who is to act as the surrogate and the woman who commissions the child are placed at significant risk by the process because of the possibility of pressure being exerted on them to comply. Even in altruistic surrogacy arrangements there can be no guarantee that both women have exercised true freedom of choice.
3.16 All these reasons persuade the Commission that surrogacy is not a practice which should receive the active approval or encouragement of government. If we thought it could be achieved without injustice we would recommend that the practice be totally prohibited by statute. However, we do not believe that a total legislative prohibition would be either just in its results or enforceable in practice. After careful consideration the Commission has concluded that many of the significant issues involved in the practice of surrogacy are not amenable to control by the law. Whether surrogacy is to find widespread acceptance in the community in the future is not something that can be controlled by the 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.
3.17 In the discussion paper we dealt at some length with the debate on the role of law in the enforcement of morals.29 The debate, which is perennial amongst lawyers and legal philosophers, is most often described as the Hart-Devlin debate. More recently, it has been restated in a simpler way by the American legal philosoplier, H L Packer.30 Packer reintroduces J.S. Mills’ claim that “the only purpose for which power can be rightfully exercised over any member of a civiIised community , against his wiII, is to prevent harm to others”31 but adds: “The question is not one of whether or not there will be harm done, it is one of the remoteness and probability of the harm”.32 He goes on to point out that some things are more harmful than others and that a balance must be made also between gravity and remoteness of harm, for in Packer’s view one “cannot meaningfully deal with the question of ‘harm to others’ without weighing benefits against detriments”.33
3.18 The Commission finds itself in general agreement with the approach adopted by Packer. We have started our analysis from the position that unless there is a serious risk of substantial harm to others, the law should treat decisions about surrogacy as matters of personal judgment. However, we recognise that surrogacy can cause serious harm to others beyond the immediate parties to an arrangement. The other people obviously exposed to risk by the practice are the child and the families of all the parties involved. The -immediate parties to the arrangement may also be placed at risk by tile conduct of others. If the arrangement is viewed as being for the benefit of the commissioning parents, the interests of the surrogate mother may warrant protection. The spouse of the commissioning father may also need protection from her husband and relatives and all may deserve support from the community if they seek to withdraw from the arrangement once it is set in motion.
3.19 In the recommendations made in Chapter 4, we have tried to achieve a balance between use of the criminal law to give the parties and the community the protection we think is required while maintaining as much freedom of choice as is possible for the individuals involved.
FOOTNOTES
1. “Commissioning Parent” (No 1) (SB 4, 1988).
2. “Commissioning Parent” (No 2) (SB 10, 1988); Brian Dawson (SB 11, 1988).
3. Surrogate Motherhood: Australian Public Opinion (RR 2, 1987) at 8.2.
4. Id at 2.1-2.7, 8.2.
5. A C Houlsby (SB 9, 1988)
6. “Surrogate Mother” (No.2) (SB 2 2 ,1988); “Mary” (PH 9, 1988).
7. “Surrogate Mother” (No.1); (SB 6, 1988); “Surrogate Mother” (No.2, 1988) (SB 27, 1988).
8. Ibid.
9. Mrs Eugene (SB 1, 1988); Mrs J Hutchison (SB 8, 1988); Brian Dawson ( SB 11, 1988 NSW infertility SociaI Workers Group (SB I5, 1988); “Surrogate Mother” (No. 2) (SB 27, 1988).
10. V Potempa (SB 22, 1988).
11. Paul Kaufmann (SB 26, 1988).
12. Ibid.
13. Dr D Bartels (SB 2, 1988); Catholic Women’s League (SB 7, 1988); Ms J McHutchison (SB 8, 1988); NSW Infertility Social Workers Group (SB I5, 1988).
14. Dr Ditta Bartels (SB2, 1988); Catholic Women’s League (SB7, 1988).
15. Dr Ditta Bartels (SBZ, 1988): Right to Life Association (NSW) (SB 13, 1988).
16. Catholic Women’s League (SB 7, 1988).
17. Dr Ditta Bartels (SB 2, 1988); Dr A Jago (SB 5, 1988); Right to Life Association (NSW) (SB 13, 1988).
18. Dr A Jago (SB 5, 1988); Right to Life Association (NSW) (SB 13, 1988).
19. Ms Patricia MacMaster (SB 3, 1988); Catholic Women’s League (SB 7, 1988); Ms Judy McHutchison (SB 89, 1988); Right to Life Association (NSW) (SB 13, 1988).
20. Dr A Jago (SB 5, 1988); Right to Life Association (NSW) (SB 13, 1988).
21. NSW Infertility Social Workers Group (SB 15); Salvation Army (SB 16, 1988); Presbyterian Women’s Association of Australia in NSW (SB 21, 1988); Julienne R. Lauer (SB 23, 1988).
22. Association of Relinquishing Mothers (SB 14, 1988); Rebecca M Albury (SB 19, 1988); NSW Infertility Social Workers Group (SB 15, 1988) The Salvation Army (SB 16, 1988); Catholic Archdiocese of Sydney (SB 201 1988); Presbyterian Women’s Association of Australia in NSW (SB 21, 1988); Margaret van Keppel (SB 25, 1988).
23. Catholic Women’s League, Australia (SB 7, 1988); Rebecca M Albury (SB 19, 1988).
24. Catholic Archdiocese of Sydney (SB 20, 1988).
25. Rebecca M Albury (SB 19, 1988).
26. Ibid.
27. B Guthrie and M Kingshott (SB 31, 1988).
28. Surrogate Motherhood: Discussion Paper 3 (DP 18, 1988) at 6.21.
29. Id 6.12 - 6.18.
30. H L Packer, The of the Criminal Sanction (OUP California, 1968) 266-267.
31. Quoted in Packer, id 266.
32. Ibid.
33. Id 267.
