Domestic and International Surrogacy: Legal and Ethical Considerations

This essay delves into the complex legal and regulatory landscape of surrogacy, both domestically and internationally. It begins by defining surrogacy and highlighting the growing demand driven by infertility, single individuals, and LGBT couples. The paper then explores the legal issues arising from international surrogacy, including the lack of global consensus, varying regulations across countries, and potential risks such as child trafficking, statelessness, and exploitation of surrogates. It also examines the legal frameworks in Australia, including the prohibition of commercial surrogacy, the role of the Family Law Act, and the implications of transnational surrogacy. The essay concludes by emphasizing the need for a legally binding instrument to establish coherent ethical principles for global commercial surrogacy, given the increasing complexities and international dimensions of the practice. The provided information could be useful in assessing proposed surrogacy laws.

Regulatory and legislative boundaries of domestic and international surrogacy
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Introduction
Surrogacy is a state whereby a woman bears a kid for another couple through mutual
agreement. The woman involved in bearing the child is called surrogate mother while the other
parties involved in the agreement are called commissioning parents or intended parents.
Surrogacy raises numerous complexities, ever-developing and contested questions at the joint of
ethics, law and public policy. It concerns the most intimate as well as deeply personal aspects
involving family life. Besides, surrogacy concerns the vital public issues about protecting and
promoting the best interests concerning the vulnerable people such as women, children, and
minorities both nationally and internationally. Ideally, surrogacy is growing every day while
globalizing the industry. The objective of this paper is to explain the fundamental legal issues
regarding surrogacy both nationally and internationally. The information could be useful in
assessing proposed within the state surrogacy laws.
The major consideration and the beginning point is that millions of people are infertile
and desire to get children. As much as they might be able to bear or carry a child on their own,
these couples wish to be parents. Such groups of people include single persons, LGBT couples as
well as those suffering from disability, infertility and other health issues (Caamano, 2016). The
most striking concern involves the rights of the child after birth. Such concerns could
commodification of the child, risk of the kid becoming stateless and more so right to know his or
ancestry. However, states should consider what the best interests of these children given birth
through surrogacy, as much as their parents might have broken their laws (Whittaker, 2016). In
addition, the states should consider the interests and rights of surrogate mothers since some of
them could be exploited.

Legal issues regarding international surrogacy
Internationally, there is no mutual agreement on the ways of approaching surrogacy
across the world. Surrogacy remains unregulated in some countries while in others the process is
strictly regulated. However, there is growing and the common trend towards creating laws meant
to address surrogacy in different ways (Mohapatra, 2016). On the other hand, some jurisdictions
regulate and permit only non-commercial while prohibiting commercial surrogacy. However,
there are other nations that regulate and permit all types of surrogacy including the commercial
one. A number of surrogacy welcoming jurisdictions were previously or have become
destination countries for foreigners. In fact, various issues have been raised concerning lack of
legislative, regulatory and health standards, creating hazardous conditions as well as
manipulative for children and surrogates in these places (Galloway, 2016). Notably, a number of
destination states are working towards closure of their transnational surrogacy markets.
International surrogacy arrangements could have weighty impacts on the kid's rights born
through surrogacy. Indeed, unregulated surrogacy arrangements raise actual issues in regards to
child trafficking (Gerberet and O'Byrne, 2016). However, even where some regulations are
involved, legal regimes' differences between nations can imply that relationships between the
child and the parent are not recognized. As a result, such issues may impact the rights of the
child such as rights to passports, citizenship, inheritance, medical treatment as well as child
support. In other extreme incidences, there are high risks to the child becoming stateless
(Storrow, 2011). Besides, lack of regulations in some countries in regards to assisted
reproductive treatment could mean that such child cannot access information regarding his or her
origin. Surrogates may too be at risks of exploitation such as trafficking. Also, there are issues on
whether they can give informed and free consent to surrogacy arrangements.

Ideally, there are numerous and significant intricacies involved with international
surrogacy. As a result, navigating medical and the legal systems can be challenging in some
countries. This is because; in such nations, regulatory and legislative frameworks could be very
weak. Also, in case the surrogacy is legal in those countries, high chances are little protection is
offered to the parties participating in the arrangements. Therefore, the participants need to know
they will be financially accountable for all the expenses incurred overseas. Some of the possible
expenses could be the unexpected medical treatment, for instance, the neonatal care in case of
premature births and other health problems (Whittaker 2010). Apart from medical and legal
complexities, more risks in relation to surrogacy involve the movement of other countries.
Basically, every country has embraced its own regulations and procedures in regards to
immigration. How these people exit their country vary from others hence, intended parents
should be aware of the procedures. Also, people need to be aware of other social risks such as
trafficking and exploitation of surrogates (Twine, 2015).Children may also fail to travel to other
countries because they do not have travel documentation. As a result, the participants of
surrogacy should understand the consequences, before the action to avoid further difficulties
whether nationally or internationally.
Domestic Surrogacy legal issues
In Australian, surrogacy arrangements are regulated at the territory and state level. All
states, as well as the Australian Capital Territory, do forbid commercial or compensated
surrogacy (Whittaker, 2016). However, it allows altruistic and reimbursement concerning some
of the surrogate's expenses. In other Australian states, the ban on commercial surrogacy involves
extraterritorial application. Particularly, the federal committee currently controls any inquiry into
harmonizing and reforming surrogacy arrangements within Australia (Snow 2016). Section

60HB of the Family Law Act of 1975 knows the orders of territory and state courts that move the
legal paternity of kids born through surrogacy in order to enable legal proceedings sated in the
Family Law Act.
As a member to the U.N Treaties concerning child's Rights, the Hague Convention
towards Co-operation and Children Protection in Respect of Inter-country as other different
pacts, Australia is committed to protecting the significant rights of children born via surrogacy.
The conventions involve obligations to prohibit the sale, trafficking, and abduction of the
children. In addition, extra caution is enforced by the individual in all cases of surrogacy that are
entered in overseas (Darling, 2014). As a result, the imposed law ensures that Australia's
citizenship necessities are not used to prevent adoption decrees or any other children welfare
laws.
Surrogacy arrangements done outside Australia might not meet a number of necessities for
transfer of lawful parentage under territory and state law. This could be because the surrogacy
arrangements involved are commercial or the parties involved might not have had independent
legal advice or counseling (Darling, 2014).Therefore, the legal parentage transfer to the intended
couples might not be obtainable under Australian law. In such a case, the outcome could have a
number of effects on children given birth through a transnational surrogacy arrangement.
Therefore, the intended parents are expected to seek legal advice concerning possible causes of
not being acknowledged as a legal mother of a child born through an intercontinental surrogacy
(Gerber and O'Byrne, 2016).It is an extreme offense to engage in a commercial substitute parent
contract intentionally within Australia. In fact, the involved parties will be punished for such
offense if they were normal residents within the Australian Capital Territory. The maximum
punishment involves a fine of 15,000 dollars for the individual or 75,000 dollars for a

corporation or jail sentence of one year (Storrow, 2011). Other offenses that have the
extraterritorial impact, relate to procuring, advertising as well as facilitating commercial
surrogacy. Nevertheless, such criminal bans have not been enforced to date.
Additionally, there is no policy in connection with international surrogacy arrangement
whether commercial or altruistic, at any Commonwealth level. Besides, the default position
involves a laissez method. Commonwealth agencies that offer passports and citizenship are not
allowed to make decisions on whether the child was born thru surrogacy contract on not. This
implies that the commissioned parents involved in surrogacy agreement internationally can attain
Australian passport and citizenship (Margalit, 2015).By attaining the passports the children can
go back to Australia while accompanied by their intended parents. On the other hand, bringing a
child to live in Australia will require the intended parents to apply for Australian nationality by
descent or a stable visa card for the child. In case, the child becomes a citizen of Australia by
decent, the commissioned parents will as well require getting the child an Australian passport. In
addition, any child born abroad to an Australian person does not attain Australian nationality by
automatic law operation (Gerber and O'Byrne, 2016).However, that person can apply for the
citizenship in Australia by descent. The process of citizenship application by descent is assessed
depending on the requirements stated in an Australian Citizenship Act (2007).Also; the
assessment can be done depending on the policy rules outlined in the Australian Citizenship
Directives.
Conclusion
To sum up, there are major variations towards the approach of surrogacy across the
world. A number of countries forbid surrogacy completely; others allow a few while other allow

all types of surrogacy arrangements. The regulatory surrogacy arrangement landscape is too in
flux currently. Numerous jurisdictions have previously or are currently thinking of changing
their laws. However, it is critically clear that not country survives in a vacuum. Therefore, every
jurisdiction's policy involving surrogacy agreement influences other nations, as well as their
policy position regarding other countries, impacts the rest. Even where a state forbids surrogacy
deal, it faces difficult problems especially when the child born through surrogacy has to be
returned to his or her jurisdiction. However, despite that the developing nations have originally
taken the advantage of bans of surrogacy in other places, they also react to allegations of harm
and mistreatment. As a result of the growing complexities as well as international magnitudes
concerning surrogacy, various analysts argue that legally binding instrument and multilateral is
necessary. The concept will, therefore, establish a coherent as well as ethical principle of global
commercial surrogacy.

Bibliography
Caamano, J.M., 2016. International, commercial, gestational surrogacy through the eyes of
children born to surrogates in Thailand: A cry for legal attention. BUL Rev., 96, p.571.
Darling, M., 2014. A welfare principle applied to children born and adopted in
surrogacy. Globalization and Transnational Surrogacy in India: Outsourcing Life, pp.157-178.
Galloway, K., 2016. Surrogacy and dignity: rights and relationships. Griffith Journal of Law &
Human Dignity, 4(1).
Gerber, P. and O'Byrne, K., 2016. Surrogacy and Human Rights: Contemporary, Complex,
Contested and Controversial. In Surrogacy, Law and Human Rights (pp. 13-20).Routledge.
Gerber, P. and O'Byrne, K., 2016. Through the Looking-Glass: A Proposal for National Reform
of Australia’s Surrogacy Legislation. In Surrogacy, Law and Human Rights (pp. 43-
76).Routledge.
Margalit, Y., 2015. From baby M to baby M (anji): Regulating international surrogacy
agreements. JL &Pol'y, 24, p.41.
Mohapatra, S., 2016.Adopting an International Convention on Surrogacy-A Lesson from
Intercountry Adoption. Loy. U. Chi. Int'l L. Rev., 13, p.25.
Snow, D., 2016. Criminalising commercial surrogacy in Canada and Australia: The political
construction of ‘national consensus’. Australian Journal of Political Science, 51(1), pp.1-16.
Storrow, R.F., 2011. Assisted reproduction on treacherous terrain: the legal hazards of cross-
border reproductive travel. Reproductive biomedicine online, 23(5), pp.538-545.

Twine, F.W., 2015. Outsourcing the womb: Race, class and gestational surrogacy in a global
market.Routledge.
Whittaker, A., 2010. Challenges of medical travel to global regulation: A case study of
reproductive travel in Asia. Global Social Policy, 10(3), pp.396-415.
Whittaker, A., 2016. Australians crossing borders to Thailand for international
surrogacy. Assisted Reproductive Technologies in the Global South and North: Issues,
challenges and the future. New York: Routledge.