If Nicole Kidman and Keith Urban had hired an overseas surrogate to carry baby Faith Margaret while living in any of their NSW homes, and then returned with their baby,they would be subject to fines and jail sentences, under the terms of the amendment to surrogacy legislation introduced by NSW Minister for Community Services, Linda Burney.
On March 1 2011 NSW legislation on surrogacy will pass into law, making commercial surrogacy illegal in the State.
Linda Burney has added an extra territorial amendment to the original surrogacy bill, extending the criminalisation of commercial surrogacy to those who employ overseas surrogates.
The penalties for using an overseas surrogate will be a fine of some $110,000, and/or two years jail.
As well, the child parents bring home will have no legal rights and protection, as do all other children in NSW, regardless of the method of their conception.
Parents may apply for parentage orders for their children, however in doing so will run the risk of criminal prosecution, with fines and possible jail terms.
This would seem a powerful disincentive to applying for appropriate orders, leaving the children in a right-less and unprotected limbo.
As well, Burney’s amendment assumes that all those seeking overseas surrogacy arrangements will look for underprivileged women who need the money.
There are many commercial surrogates overseas who are middle class women, and who make an informed choice to carry a child for another woman.
The Minister’s justifications
Minister Burney’s justification for the extra territorial clause is that she wishes to, in her language, punish those who “take advantage of women who hire out their bodies because they are poor.” Criminalizing those who have been unable to find altruistic surrogates in NSW and turn instead to women overseas is the realisation of Burney’s desire to punish.
It is unrealistic in the extreme to expect this criminalizing of a minority group of NSW citizens will make any dent at all in the exploitation of women in countries where commercial surrogacy is legal. One might as well criminalize everyone who buys a t-shirt made in a Bangkok sweatshop by six year old children who are paid 20 cents a day for their labours.
Or what about the Australian citizens who travel overseas for say, a kidney transplant to a country where the traffic in human organs is unregulated and people sell the parts they can live without for an income? Are we going to criminalize those citizens and prosecute them when they come home with their new illegal part on board?
A divisive issue
Commercial surrogacy is a morally divisive issue. Those against it argue that it results in the depersonalisation of pregnancy and childbirth, and that it treats both women and children as commodities. Wealthy couples can “rent a womb” from financially vulnerable women, and this, in the eyes of some, is exploitation of the worst kind.
Commercial surrogacy is felt by some to be degrading to both women and children. It is perceived as morally offensive, and as treating other human beings merely as a means to an end.
There are potential emotional difficulties on all sides, including that of the child.
The argument for (briefly)
Those who argue for commercial surrogacy point out that it is a matter of personal autonomy for all the adults involved. If a woman wishes to act as a surrogate that is her business, they argue, and she is entitled to remuneration for her time and work.
If commercial surrogacy is permitted and regulated in NSW, then it will lessen the need for couples to go overseas and into situations of possible exploitation, they claim.
To proscribe commercial surrogacy on the grounds that it’s harmful to those undertaking it is interference by the State in personal matters that are not the State’s business, and that belong in the realm of the private conscience, some argue. It is not acceptable, this argument continues, for the State to impose and enforce one moral aspect against private actions that do not harm others.
What is Burney’s amendment good for?
It seems highly unlikely that Burney’s amendment will prevent couples seeking commercial surrogacy overseas. What it will most certainly achieve is the legal alienation of the resulting children in this State. It will cause parents to conceal their activities, perhaps even from their own families, for fear of prosecution.
It will cast an unacceptable and permanent cloud over such families and their children. It will drive those having no option but commercial surrogacy, underground.
And for what?
To satisfy Burney’s need to take a moral stand against the laws of other countries.
Moral stands are often good and necessary things, but only when they’re realistically weighed up against their usefulness, and their consequences. In this case the usefulness of such a moral stand would seem to be minimal. The consequences, on the other hand, are horrible and permanent for the families concerned.
The reality is that couples needing the services of a surrogate are going to find one, somehow, somewhere. Those of us, who like Ms Burney have not needed to take this drastic action in order to create our families, need to be especially careful when prescribing for and judging those less fortunate in that respect.
It is an especially weighty responsibility for Burney, as she is in a privileged position. She has the power to create a situation in which those less fortunate than herself are criminalized, and their children cast into a legal limbo.
Burney’s extra territorial amendment could well be seen by some as an abuse of her power. Perhaps it isn’t a politician’s role to punish those he or she disagrees with, on moral grounds that are far from unanimous in the community.
Perhaps it is especially distasteful when a politician acts on a personal desire to punish constituents who are already struggling with the fraught issue of creating their family.
- Surrogacy laws pass through parliament (news.theage.com.au)
- Kidman, Urban have Faith thanks to surrogate mother (theage.com.au)
- Are we creating a generation of “cash in hand” mums? (thepunch.com.au)