Ethical & Legal Issues Surrounding Surrogacy Motherhood in Australia

This essay delves into the ethical and legal complexities of surrogacy, particularly within the Australian context. It begins by defining surrogacy and differentiating between altruistic and commercial arrangements. The essay then examines the legal framework in Australia, highlighting state-based regulations and common approaches. It explores ethical concerns, including medical risks to surrogate mothers due to IVF and pregnancy-related complications. The essay discusses the potential for exploitation of women, considering financial incentives and the impact on their well-being. It also addresses the exploitation of children, including the potential for attachment disorders and the use of surrogacy by wealthier individuals to take advantage of low-income citizens. The essay highlights the need for ethical considerations to protect the rights and well-being of all parties involved in surrogacy arrangements.

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 1
ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD
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Introduction
Healthcare profession is among the few professions which are guarded with a high level
of strictness because of its operational settings. This is because the profession mainly entails
interacting with people who are helpless and any slight mistake may lead to loss of life or
unnecessary suffering. However, despite the fact that the profession has been strictly guarded by
the law to minimize deaths and sufferings among the victims, there are some scenarios in the
course of service delivery which are characterized by uncountable dilemmas (Watson, 2016,
p.96). Under such scenarios, decisions made by the stakeholders often result in suspicion and
unanswerable questions from different points of view. In response to such dilemmas, state laws
have been enacted with an aim of regulating the approaches towards such scenarios and which
have resulted in what is commonly known as ethical-legal issues. This paper scrutinizes the
ethical-legal issues surrounding surrogacy in Australia.
What is surrogacy?
In its basic definition, Surrogacy refers to the arrangement which is done as per the
state’s legal framework for a woman to become pregnant and carry the pregnancy for the nine-
month period and later give birth to a child or children for another person or persons who
ultimately take the child and become the parents for the newborn child or children (Scherman et
al, 2016, p.20). Mainly, surrogacy is sought when a woman or a couple is unable to bore children
on their own and especially due to health issues, when carrying a pregnancy risks the life of the
mother as advised by health professionals or when a male alone or a male couple wishes to have
a child. Surrogacy motherhood takes place in two different forms (Watson, 2016, p.96); the first
form is where monetary compensation is involved while in the second form no compensation is

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 3
involved. Where the surrogate mother is compensated for her pregnancy service is considered as
commercial surrogacy while in the case where no compensation is involved beyond
reimbursement of the reasonable expenses incurred by the surrogate mother during the period of
pregnancy is known as altruistic surrogacy (Pascoe, 2018, p.14). The legality of surrogacy has
widely varied between jurisdictions and sometimes has resulted in problematic interstate
arrangements.
Surrogacy in Australia
Surrogacy in Australia is heavily regulated by state laws (Cui et al, 2016, p.65). Although
different states and territories are responsible for their own surrogacy legislation, they all have
some common approaches towards this act: for instance, in all the states the agreements between
surrogate mothers and the intended parents are not legally binding, implying that the surrogate
mothers may change her minds any time and decide not to give up the baby at birth which is
legally allowed (Mukherjee, 2018, p.8). Australian capital was the first jurisdiction to pass the
legislation on surrogacy motherhood under the Parentage Act of 2004. The Act, however, upheld
the common viewpoint that surrogacy should only be allowed under altruistic terms where
reasonable expenses only are reimbursed to the surrogate mother.
The intended parents were also entitled to have tried all the other methods of getting
pregnant before they could engage in surrogacy and a serious medical reason was supposed to
accompany their surrogacy application. The application also required gynecologist verification in
a written form. Further, registered psychologists would be required to address all the
implications of the surrogacy process in the midst of lawyers to make it clear on the rights of
surrogate mother's rights are as well as those of the intended parents (Cui et al, 2016, p.65). Once
the procedure underwent all the above steps successfully, the Human Research Ethics Committee

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 4
would approve the surrogacy request before it commences. The ACT strictly prohibited any
public advertisement for surrogates as well as any third parties assisting in the procurement of
surrogates. Nevertheless, the act termed it an offense punishable by the law to anybody entering
overseas surrogacy arrangements (Carr, 2018).
Ethical issues surrounding surrogacy
Despite the fact that many countries just like Australia have expressed their support for
altruistic surrogacy making it seem like an acceptable option couple, it has been accompanied by
very serious medical and ethical questions. For instance, the risk factors posed to surrogate
mothers, the exploitation aspect on surrogate mothers and then surrogacy being taken as way of
taking the advantage over low class citizens among others as discussed below (Perkins et al,
2016, p.440).
The medical risk factor on surrogate mothers
One of the recent surrogate motherhood incidences is that of tabloid magnate and the
reality show star Kim Kardashian West in 2017. Kardashian West already had two children
through the natural childbirth but decided to get her third child through surrogacy following the
doctor’s reports that carrying another pregnancy posed a potential life threat on her ; little did she
know that she had equally exposed the surrogate mother she contracted into the same potentially
life-threatening medical conditions (Fenton-Glynn, 2016, p.70). In reality, both pregnancy and
childbirth processes expose mothers into medical risks, which are directly inherited by the
surrogate mothers while the intended parent’s health, especially in the case of male homosexual
couples, remains uncompromised. Medical research has indicated that pre-eclampsia and ectopic

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 5
pregnancy risks usually increase for any surrogate woman because of the IVF process and the
two conditions can have fatal complications (Perkins et al, 2016, p.440).
IVF process requires women to donate multiple eggs to allow the creation of embryos
and this is usually dangerous to women who are forced to take high hormonal doses in order to
trigger ovulation and which are preceded by invasive procedures to extract eggs. Research has
indicated that donated eggs which are used in IVF from genetic mothers or donors increase the
potential risks for pregnancy-induced hypertension which commonly lead to pre-eclampsia (Pol,
2016,p.1309). In a number of reported incidences where doctors implant several embryos in
order to increase the chances of surrogate pregnancy, the probability of multiple births is usually
very high and considering the fact that carrying and delivering multiple babies is medically
dangerous, it increases the mother’s risk of having pre-eclampsia during the pregnancy period
(Fenton-Glynn, 2016, p.70).
Research studies have also discovered that fathers and/or babies can also contribute to
pre-eclampsia disorders in surrogate mothers which risks the life of the woman contracted
(Macdonald-Wallis, 2015, p.5908). A good example can be drawn from what happened to
Jackie, a surrogate woman from Oregon after being paired with a Chinese couple (Berndt, 2018).
After meeting the genetic mother a couple of months during the pregnancy period, the genetic
mother from China shared with her on how she had lost her first child due to pre-eclampsia
complications and unfortunately Jackie later came to suffer the same complication towards the
end of the pregnancy and which threatened her life to a point of death (Trask, 2018, p.490). It
was attributed to the DNA of the genetic father on the baby, also called the dangerous father
effect. Surrogacy can, therefore, be perceived as mitigating high life-threatening risks using other
people and whose lives matter just like any other person.

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 6
Surrogacy is more of exploitation to Women
Surrogacy takes advantage of maternal and altruistic desires of some women to help
others while putting their lives into danger. According to the Australian laws, a surrogate mother
is entitled to an average of $25000 which can be seen as compensation to the high medical risks
the woman takes as a surrogate mother. After the first pregnancy, a woman is allowed to charge
more for her second surrogacy which encourages continuous health and life risks by pursuing
more pregnancies (Guntram and Williams, 2018, p.510). Perceiving the concept from a financial
compensation point of view also raises various concerns like, “whether a surrogate woman was
doing it out of free will or compensation.” Considering the compensation a woman receives on
signing the contract, in most cases research has proved that surrogate's romantic partners or
husband usually encourage and sometimes manipulate women into pursuing surrogacy for their
own interests (Wilson, 2017, p.653). This is especially common in the developing states where
surrogates can provide impoverished families with enough cash to afford modest homes or to pay
debts. Ethically, this is exploiting women for self-interests and not considering the fact that this
practice puts women in medical risks which can be life-threatening at times.
Surrogacy is more of exploitation to Children
Considering commercial surrogacy specifically and which involves women carrying a
pregnancy and giving birth to children which are not theirs under the motivation of payments, it
can be seen as “womb renting” or “baby selling” inaccurate description (Guntram and Williams,
2018, p.510). However, regardless of how surrogate mothers try to distance themselves both
emotionally and intellectually from the preborn children, they become attached to the surrogate
mothers right in the womb but not the genetic mothers (Watson, 2016, p.96). After birth,

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 7
surrogate babies are not allowed to bond with the mothers they knew during the pregnancy and
that makes them fall essentially on the arms of what they perceive as strangers although they
may be the biological parents.
Although surrogacy encourages the couple to use their biological sperms and eggs to
create an embryo that is then implanted into a surrogate mother, the developing child recognizes
his or her mother as the woman she grows inside her uterus (Scherman et al, 2016, p.20). Studies
have also indicated that babies have a preference and physiological responses to their mother's
voice with the first few minutes after birth. In fact, one study has demonstrated that “the fetal ear
is well-equipped to detect auditory stimuli” and the voice of the mother has some calming effects
that decelerate the heart rate of the baby (Kulesza and Grothe, 2015, p.35). Therefore, being
given to a different woman or a homosexual couple can be highly disturbing and sometimes
those children eventually develop adjustment disorders due to the lack of bonding relationship
with the maternal mother (Cui et al, 2016, p.65).
Surrogacy as a way of taking advantage of low-class citizens
Another prominent feature of surrogacy motherhood is its utilization of young and low-
income citizens by older and wealthier singles. The Center for Bioethics and Culture Network
(CBCN) has given a rough estimate of 50% of surrogate mothers in the US to be military wives
because of their low incomes (Scherman et al, 2016, p.20). Surrogates have also been
characterized by Christians living in rural areas and who have attended colleges but never
attained degrees because of financial constraints. On the other hand, prospective parents are
mainly wealthy and educated people living in urban areas.

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 8
This class discrepancy was best demonstrated by Alexandra Kuczynski and her surrogate,
Cathy. Kuczynski was the wife of a millionaire man who was living in an exclusive address
based in New York City (Zehelein, 2018, p.12). After undergoing several fertility treatments in
vain, Kuczynski and her husband had decided to contract Cathy from New Jersey to be able to
get a child because it was illegal in New York (Fenton-Glynn, 2016, p.70). Kuczynski, later on,
describes her varied emotions in the course of the surrogate's pregnancy, from her jealous
encounters that Cathy could give birth to a child while it was impossible to her. Later on, she
explains how being a free woman in the last few months of the pregnancy allowed her to attend
the Super Bowl and white water rafting while her surrogate was dealing with physical side
effects of pregnancy (Pascoe, 2018, p.14).
Although surrogacy in most cases has been perceived as a win-win for the two parties
involved and that if a mother has successfully had her own children can help the less fortune by
renting her womb, the exchange is highly exploitative and that’s a fact not to be ignored (Berndt,
2018). For instance, Cathy’s reason behind her acceptance to be a surrogate mother was to
educate her daughter in college. Cathy's daughter is also presented to have sold her eggs, which
is also very risky. Surrogacy is always accompanied by medical consequences and the promise
for financial returns put women in untenable positions where exploitation risks and long-term
health problems are expected (Guntram and Williams, 2018, p.510).
Legal issues surrounding surrogacy
In many state laws including Australia and the US, Surrogacy has been a controversial
issue because the laws and agreements governing it vary greatly. This is because some states
don’t have laws to govern surrogacy contracts while others have declared those contracts

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 9
unenforceable in public policy (Mukherjee, 2018, p.8). The states that permit this agreement on
the other hand only allow it as an uncompensated arrangement and as a gestational agreement.
Other states with surrogacy laws forbid homosexual couples from engaging in surrogacy
agreements. Surrogate mothers are therefore allowed to only live where surrogacy is allowed
(Guntram and Williams, 2018, p.510).
In addition to drafting surrogate contracts, intended parents are entitled to finalize
parental rights to be acknowledged as legal parents while in some countries a pre-birth must be
filled within a court jurisdiction to allow the names of the intended parents appear on the child’s
certificate of birth (Pascoe, 2018, p.14). In other scenarios, the name of the surrogate mother is
the one placed on the original birth certificate because she is believed to be the closest parent of
the child. In this scenario, the intended mother is then required to follow a step by step procedure
of adopting the child as recognized by the law before the name of the child can be changed in the
birth certificate (Guntram and Williams, 2018, p.512). A Judgment of Paternity must also be
filed as recognition of the intended parents of the child and be placed in the birth certificate.
Both contract and finalization of the parental rights have always raised controversy
depending on the state laws. Mary Beth Whitehead in 1986 drew attention on surrogacy debate
when after insemination with Willian Stem’s sperms and giving birth refused to surrender the
child to him (Pascoe, 2018, p.14). This case, commonly known as “Baby M,” ultimately ended
before the court could uphold the surrogacy agreement. William was granted custody while Mary
Beth who had donated her egg was given visitation rights (Austin, 2016, p.15).
Conclusion

ETHICAL & LEGAL ISSUES SURROUNDING SURROGACY MOTHERHOOD 10
In summary, Surrogacy has continued to be a complicated tangle both legally, socially
and ethically. The most common form of surrogacy is the altruistic surrogacy because it’s
believed to discourage capitalization of this motherhood as a source of income. Opponents of
commercial surrogacy have compared it to baby buying and selling and are believed to be a
technology to exploit women and degrade the true value of motherhood and fatherhood in the
current society.
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