Inquiry into Surrogacy Submission 70

2

Structure of this Submission

1. Summary of FINRRAGE Principles on Surrogacy p. 2

2. Summary of FINRRAGE Responses to Terms of References p. 7

3. Short- and Long Term Harms of Surrogacy for Women p. 18

4. CoRP et als. International Protocols and Conventions that surrogacy

violates p. 22

1. SUMMARY of FINRRAGE Principles on Surrogacy

• FINRRAGE thoroughly disagrees with the theory and practice of

surrogacy, both as a regulated capitalist enterprise

(compensated/commercial surrogacy), and as a form of uncompensated

love and kindness (so-called altruistic surrogacy) that is based on

patriarchal values which state that it is in women's nature to be

nurturing, kind and generous, as well as giving for free, often at the

expense of their own well being.

• We define surrogacy as the exploitative

commissioning/buying/renting by well to do/rich people of the body

and soul of a poor/er woman who becomes a ‘breeder’ for a third party

and has to relinquish her baby/ies made from her own blood and bones.

In the USA and poor countries, this often entails well off ‘white’ baby

buyers and ‘marginalised white/black/brown’ surrogate mothers. We

have yet to see a (white) CEO to be a surrogate for her (black) cleaner.

We also believe that surrogacy fosters eugenic practices through the

unlawful enforcement of prenatal testing, foetal reductions, abortions

and abandoning resulting children with disabilities or the 'wrong' sex.

• For someone to get a baby through surrogacy, one or two women’s

lives are put at risk (if an egg provider is required. This is not an

acceptable way to become a parent/form a family. It is selfish

exploitation that well to do/rich people engage in which can only

happen through the harming of two other human beings (egg provider,

surrogate) as well as violating the human right of the resulting child to

remain with her/his birth mother.

• Women are not containers to be used as baby makers and then discarded. We

believe the term ‘gestational carrier’ is an insult. The harms caused by the many drugs

involved in the practice of egg extraction and surrogacy have never been properly

researched with long-term studies. Anecdotally, many serious short- and long-term

adverse effects such as loss of fertility and reproductive cancers are well known, but

mostly dismissed by IVF doctors and not brought to the attention of egg providers and

surrogate mothers. For this reason we consider the ‘consent’ by women to ‘donate’

their eggs or act as so-called surrogate mothers to be null and void. Similarly, the idea

that egg provision/surrogacy can be a woman’s ‘choice’ has no foundation as a) she

does not know the harms that might befall her, and b) the birth mother cannot know in

Inquiry into SurrogacySubmission 70

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advance how the pregnancy and birth will affect her.

• We argue that surrogacy can be likened to reproductive slavery, reproductive

prostitution, the sale of children, and trafficking in children. We suggest all of its

forms should be abolished. The practice of surrogacy is also contrary to the goal of

gender equality as stipulated in the United Nations Convention on the Elimination of

All Forms of Discrimination against Women (CEDAW) which the Australian

government has signed (for a List of International Protocols and Conventions which

Surrogacy Violates, see 4. in this Submission, pp. 22-28).

• We strongly refute the concept of surrogacy as ‘work’. Likening the growing of a

human being in a woman’s womb over nine months to, say, the manufacture of a car

by calling it ‘work’, reduces human beings to commodities. Women’s bodies are not

production lines. Babies grown in a woman’s womb are not ‘things’, They are human

beings who must be afforded dignity and human rights, as does their egg provider and

birth mother.

• FINRRAGE rejects the theory that the ‘genes’ in the embryo of the

commissioning heterosexual couple are more important than nine

months of 24/7 gestation and growing of human life in a woman’s

body.

• There is also a deep hypocrisy in gay men emphasising their desire

for genetic ties to the growing baby when half the genes always come

from an egg provider. This is not talked about and must be

acknowledged. Donor conceived people are, often desperately,

searching for both their sperm and egg donors. Surrogacy is already

producing exactly the same problems

(<http://theothersideofsurrogacy.blogspot.com.au/>.

• We believe that the dissociation taking place when a surrogate

mother calls herself an ‘oven’ or ‘incubator’ and talks of the growing

baby as ‘her little passenger’ because the baby does not have her genes

might have serious repercussions for her mental health in years to

come. This dissociation is strongly supported by all pro-surrogacy

parties involved as they do not want the 'messy situation of a birth

mother not relinquishing her baby (see discussion in Kajsa Ekis

Ekman's Being and Being Bought, 2013, pp. 188-190). Dissociation

during pregnancy can also influence the baby’s development in the

womb and impact her/his future development.

• Children are not commodities to be bought and sold. Children resulting from

surrogacy did not consent to not be able to connect with their birth mother or egg

provider. They did not consent to be given away. In 1990, Australia ratified the

United Nations Convention on the Rights of the Child (1989). Article 7 of the

Convention affords children the right, as far as possible, to know and be cared for by

their parents. Article 35 also stipulates that "State Parties shall take all appropriate

national, bilateral and multilateral measures to prevent the abduction of, the sale or, or

traffic in children for any purpose or in any forms." Australia endorsing the practice


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of (transnational) surrogacy, which is trafficking/selling of children, clearly violates

this Convention.

• There is no right to a child, genetic or otherwise. We know that infertility can be

extremely traumatic, but a deep desire for a child is not a need. And there is no right

to a child or ‘family formation’ when in the process of baby-making two women are

harmed: the egg provider and the so-called surrogate mother (and her family).

• In March 2013, a bi-partisan National Apology for unethical (known as ‘forced’)

adoption policies and practices prior to the 1980s was made by then Prime Minister

Julia Gillard. She stated:

We resolve, as a nation, to do all in our power to make sure these practices are

never repeated. In facing future challenges, we will remember the lessons of

family separation. Our focus will be on protecting the fundamental rights of

children and on the importance of the child’s right to know and be cared for by

his or her parents.

The practice of surrogacy breaches this undertaking. If the numbers of Australians

affected by surrogacy increases, Australia will need to issue another apology to

children produced by surrogacy in 30 years.

• FINRRAGE acknowledges that transnational surrogacy has become an increasingly

global business over the last 20 years with many Australian citizens flaunting laws in

QLD, NSW and the ACT which make going overseas for surrogacy a criminal act.

But with many developing countries having rightly closed their border to foreigners

(e.g. India, Thailand, Nepal, Latvia, Cambodia, the only state in Mexico where

surrogacy was practised, Tabasco), we believe it is a good time for Australian states

and territories to stop all transnational surrogacy (including to some states allowing

surrogacy in the USA, Russia and Ukraine). This would bring us in line with many

European countries such as France, Germany, Switzerland, Austria, Belgium, Holland,

Sweden, Norway, Denmark, Norway, Spain, Italy, Holland etc who prohibit

surrogacy.

• The number of babies born in Australia from so-called altruistic surrogacy remains

very small. According to the National Perinatal Statistics Unit, in 2011, there were 23

babies born from surrogacy in Australia and NZ which represented a success rate of

16%. In 2012, there were four fewer babies born (19), representing a success rate of

15.7%. In 2013, there were 35 babies born from surrogacy, representing a success rate

of 19.9%. (No NPESU figures available for 2014/15.) This amounts to a mere 77

babies born from 2011 to 2013. Allowing for another 60 babies having been born in

2014 and 2015, this will bring the total number of babies born from surrogacy in

Australia and NZ to fewer than 150! Yet the pro-surrogacy propaganda espoused by

most of the media, IVF clinics, surrogacy lawyers and consumer groups would have

the average Australian believe that we are talking about thousands of babies!

• FINRRAGE contends that it is this small number of babies born from ‘altruistic’

surrogacy arrangements in Australia that motivates pro-surrogacy groups including

consumer groups, IVF clinics, and surrogacy lawyers to lobby judges, politicians and

law makers to support uniform ‘regulation’. Many favour the introduction of

commercial surrogacy in Australia as this will increase their financial profits: it is a


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new business opportunity! This is particularly true for the faltering IVF Industry

which is currently under investigation by the ACCC for creating ‘false hope’ for their

customers (as reported on the ABC 7.30 report, 10.2.16,

<http://www.abc.net.au/7.30/content/2015/s4403422.htm>).

• FINRRAGE calls on the Members of the Surrogacy Inquiry to reject this blatant

push for a new Fertility Industry through 'compensated'/commercial surrogacy which

is based on exploitation. It would make Australia a pariah among countries in Europe

who ban commercial surrogacy, and make us equal to the ‘wild west’ surrogacy

practices in US states. We urge members of the Inquiry to have an open mind and ask

themselves why most European countries can prohibit all forms of surrogacy, yet

Australia should encourage, diversify and commercialise it? (see

<http://corethics.org/wp-content/uploads/Surrogacy-Laws.pdf> for a 2015 list of

countries prohibiting surrogacy. Why should Australians not comprehend the unethics

and injustices in surrogacy that Europeans have recognised?

The Australian IVF industry and surrogacy lawyers are pushing the view that

surrogacy in the US is perfectly regulated and that we should follow their model. This

is a blatant untruth. Legislation in US states is messy and varies from total prohibition

to anything goes (e.g. in California). Just in the last few months, a surrogate mother

died of placental abruption. C-sections, the preferred birth method in surrogacy

greatly increase this risk. The woman had already given birth to three children by her

and her husband, and five babies via surrogacy (twin and singlets).

(See article on higher risk of placental abruptions after C-sections

<http://www.ncbi.nlm.nih.gov/m/pubmed/16582111/>).

Two other surrogate mothers caused a public storm by rejecting the demand by the

baby buyers for foetal reductions (see <http://www.myajc.com/news/news/public-

affairs/california-surrogate-atlanta-dad-demands-i-abort-a/npXhc/> and

<http://nypost.com/2015/11/25/surrogate-carrying-triplets-says-dad-demanding-she-

abort-one/>).

Over the many years since 1988 when commercial surrogacy began in the US, there

have been countless court cases. It is also well known that it is predominantly

marginalised white women as well as Black and Hispanic women that are exploited as

surrogates. A group that is frequently targeted is the wives of serving Army personnel

who welcome the pay cheque to bolster their meagre income and are indoctrinated

that, like their husbands, by becoming surrogates they engage in 'service' to their

country. To suggest that Australia should use the USA as a model for our surrogacy

laws defies common sense!

• We also strongly reject the push to pay women for egg ’donation’ currently

prohibited in Australia. In 2014 and 2015 FINRRAGE submitted two opinions to the

NH&MRC on this topic as well as on sex selection. The harms to young women of

being severely harmed from OHSS (ovarian hyperstimulation syndrome), losing their

own fertility, and suffering from reproductive cancers in later years would never stand

up to OH&S standards in any other ‘job’.

The US is again a good example of what not to do (blue-eyed and blond women with

a high IQ –attracting college students–can be paid exorbitant amounts of money for


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their egg cells: $5-10,000 as a minimum; prices can be as high as $50,000 dollars and

egg donation websites often resemble pornography pages (e.g. see eggdonation.com

which has photos of 'donor angels' on their home webpage; viewing of the egg donors'

profiles is no longer allowed without registering).

The Age ran no less than two stories on payments to South African egg ‘donors’

coming to Australia on the same day in the week before Submissions to the Surrogacy

Inquiry closed: 9.2.16, <http://www.theage.com.au/national/-gmmvyi.html> ,

<http://www.theage.com.au/national/-gmo8qn.html>.

• FINRRAGE joins concerned groups in Australia such as VANISH, ARMS, the

Women’s Bioethics Alliance, Real Choices, faith based groups as well as many

individuals who are opposed to surrogacy. Internationally, we have joined the

thousands of signatories to Stop Surrogacy Now

<http://www.stopsurrogacynow.com/#sthash.TLVYueqx.dpbs > and European groups,

amongst them the Swedish Women’s Lobby, the European Women’s Lobby, the CLF

(Coordination Lesbienne en France) and CoRP (Collectif pour le Respect de la

Personne).

• We ask Members of the Inquiry to take note that, contrary to the predominance of

writings by pro-surrogacy groups in the media, there are many groups and individuals

in- and outside Australia who do not support surrogacy.

We also ask Members of the Inquiry to take note of the huge discrepancy in funds,

media coverage and links to politicians between those groups and businesses who

support surrogacy because an introduction of commercial surrogacy - or even

government support for more 'altruistic' surrogacy - would lead to financial gains for

them. Conversely, those of us opposed to surrogacy have absolutely no financial gain

from the abolition of surrogacy.

• We also call on the government to begin a nation-wide campaign against the

practice of surrogacy along the lines of respect for human rights and decency: We

must not support practices to procure a baby at any price that are based on causing

harm to egg providers and surrogate mothers and injustice to the resulting child for

removing her or him from their birth mother.

• There are thousands of existing children in Australia that need Permanent Care in a

loving family. These arrangements are open to gay couples and single people in the

state of Victoria. FINRRAGE encourages all states and territories to embrace similar

arrangements so that many more children find a good home and people who really

want to have children in their lives can have fulfilling relationships with children in

need.

FINRRAGE believes that a world without surrogacy is possible.


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2. SUMMARY of FINRRAGE Responses to Terms of Reference

Please note that we are approaching these Terms of Reference from the position that

we believe this Inquiry could decide to

a) prohibit all forms of surrogacy; OR

b) tighten the laws around ‘altruistic’ surrogacy and make them uniform in all states

and territories;

c) extend existing laws in QLD, NSW and the ACT prohibiting transnational

surrogacy to all states and territories and enforce them nationwide;

d) keep commercial surrogacy prohibited in all states and territories.

We urge Committee Members to have an open mind when seeking answers to the

Terms of Reference. You could decide to stop all surrogacy in Australia! We

believe you do not need to follow the pro-surrogacy lobby's desired pathway to

introduce new forms of regulated surrogacy arrangements into Australia. Worryingly,

this latter approach seems to have been implied in an interview on the day before

Submissions to the Surrogacy Inquiry closed, 10 February 2016, on ABC Brisbane

with the Deputy Chair of the Inquiry, MP Sharon Claydon: "It's been a long time coming [the Inquiry], and a long time overdue," she said.

"I think a lot of parents and want to be parents, and indeed children being born into those

relationships, will be very interested in the recommendations which will come forward."

Ms Claydon said it was ludicrous that would-be parents are turning to online search engines to

learn more about surrogacy

She said it is a complex issue, made more difficult by inconsistent regulations.

"Families, they are jumping onto Google and finding out how to navigate their way around,

across the internet," she said.

"Now, I would suggest that is probably not the most ideal way that we would inform people

considering surrogacy — that would not be our preferred method."

(<http://www.abc.net.au/news/2016-02-10/mp-says-parliamentary-probe-will-

address-inconsistent-surrogacy/7154282>).

We trust Ms Claydon's views were simply reported within the existing pro-surrogacy

framework that the media espouses, and that she too is open to the option that

surrogacy might be disallowed in Australia.

**************

1 The role and responsibility of states and territories to regulate surrogacy, both

international and domestic, and differences in existing legislative arrangements.

FINRRAGE contends that all states and territories must have the same laws on both

international and domestic surrogacy arrangements. In order to guarantee uniformity

in both laws and enforcement, it might be preferable if the Federal Government

creates a new Statutory Body that is responsible for surrogacy. If such a re-

arrangement is deemed too complicated, expensive and/or in breach of states'

autonomy, the Attorneys General of all states and territories must agree to co-operate

on creating/reinforcing uniform laws on surrogacy. If this does not happen, 'shopping

around' for more lenient states will take place (as it does now).


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a) On international surrogacy, we believe the laws in QLD, NSW and ACT which

make going overseas for surrogacy a criminal act must be extended to all other states

and the NT.

Contrary to current non-enforcement of these punishable acts, we believe, they must

be enforced. However, we believe participating surrogate mothers and egg providers

should not be punished. Instead punishments should be meted out to any IVF clinic,

surrogacy lawyer, egg 'donation' agency or consumer group who take part in aiding

and abetting baby buyers aka 'intended parents' to embark on surrogacy outside

Australia. This includes engaging in (and advertising for) the recruitment of egg

providers and surrogates, practising egg extractions and creating embryos in IVF

clinics. It also includes putting a stop to inviting overseas IVF clinics to market their

services at annual pro-surrogacy conferences by consumer groups such as Families

Through Surrogacy that is currently planning their 2016 conference in June in

Brisbane (http://www.eventbrite.co.uk/e/2016-australian-surrogacy-conference-

tickets-21444727758>). If 'crowd funding' for a baby via 'altruistic' surrogacy were

still legal (<http://www.couriermail.com.au/questnews/logan/male-couple-hoping-to-

have-a-baby-by-surrogate-open-crowdfunding-account-what-do-you-think/news-

story/fe1160fdf8b18f31b9069fdd1747933c), perhaps journalists might be made to

adhere to a Code of Ethics which requires them to remind readers that the Australian

government does not condone surrogacy.

Enforcing these prohibitions for Australian citizens to engage in the transnational

procurement/purchase of a baby will require strict rules by Australian

embassies/consulates globally when it comes to issuing passports and travel papers

for newborn babies of Australian citizens abroad. Contrary to the current rules where

papers get issued after a DNA test confirms parentage by one parent, female

applicants would have to supply proof of giving birth to the baby and being the legal

or de facto partner of the male applicant. Should 'fake' attempts be detected where a

baby is presented as a legitimate couple's own child, the child has to be denied an

Australian passport and travel papers. These are harsh rules and can create 'stateless'

children, but a number of European countries have repeatedly applied them (see this

2015 case from Switzerland < http://www.swissinfo.ch/eng/surrogate-law_a-child-is-

not-a-commodity--says-top-swiss-court/41575816>). In order to avoid such

distressing situations which forces the 'intended parents' to stay in the country where

the baby is born, the federal and state/territory governments will need to fund and run

a coordinated information campaign that going overseas is prohibited, and if is

attempted, will end in tragedies. (There are clear precedents for such a campaign, e.g.

the current publically articulated and well known prohibition by the Australian

government for Australian citizens to travel to Iraq and Syria.)

b) So called 'altruistic' surrogacy within Australia. As we have stated in the

FINRRAGE Principles above, we oppose all forms of surrogacy, because we see

them all as causing harm to, and exploit, two women: the egg provider (if required)

and the birth mother aka so-called surrogate. In fact, we know from anecdotal

evidence that asking a family member to become a surrogate mother can lead to

permanent hurtful divisions in families when, for instance the birth mother refuses to

hand over her child. (It is difficult to document these cases because the pain and

trauma caused was often so great that the women involved –including their own

husbands and children–do not want to subject themselves and their families to the


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glare of the media and persecution by pro-surrogacy groups.)1

If however, the Surrogacy Inquiry, and later Australian Parliamentarians, can not

withstand the pressure from pro-surrogacy groups and opt to keep the practice of

uncompensated 'altruistic' surrogacy, we strongly suggest that all states and territories

adopt and reinforce the same laws.

The model pioneered by VARTA, the Victorian Assisted Reproductive Treatment

Authority, might be a starting point. In this model, all parties are required to undergo

psychological screening (i.e. counselling) and a criminal check (so that a potential

baby buyer such as Gammy's paeedophile father would supposedly have been weeded

out); women acting as surrogates need to be more than 25 years of age and have had

at least one child; their partners need to be involved in the approval process. So-called

'traditional' surrogacy where the birth mother is inseminated with the sperm of the

baby buyer, is prohibited. Only 'gestational' surrogacy is permissible (where an

embryo is transferred into the birth mother's uterus). Every surrogacy has to be

approved by a Patient Review Panel. Surrogates and egg 'donors' can not be

compensated for loss of income during pregnancy. Advertisements for surrogates and

egg providers are illegal. Contracts should remain unenforcable, so that in the event a

birth mother changes her mind, she can keep her baby. (See

<https://www.varta.org.au/information-support/surrogacy/thinking-being-surrogate>.)

However, a number of important changes would need to be made for the VARTA

model to become a guide for other states. Firstly, VARTA would need to stop openly

supporting and advocating for surrogacy as VARTA does on its website and has done

repeatedly in conferences and forums over the last year.2 Instead it would need to be

objective and also include arguments against surrogacy and not just feature 'feel good'

stories and incomplete medical 'lite' information about potential risks to egg 'donors'

on its website.

Another important change that would need to happen concerns the birth certificate.

Adoptees in Victoria have gained the right to be issued with an 'integrated' birth

certificate. This certificate includes details of their birth mother and birth father (if

there was one) as well as details of the mother and father who adopted them. Such an

1 There is also persecution by peers, i.e. other surrogates. When, in 2009, a US

surrogate mother, Laschell Baker, decided to keep her twins and not hand them over,

she was subjected to hate campaigns on multiple on-line surrogate forums. As Kajsa

Ekis Ekman describes it in Being and Being Bought (pp. 188-189): "She was called

'shameful', a 'witch', 'just evil', 'worse than a whore'. A woman who had been a

surrogate five times wrote: 'This whole thing is DISGUSTING and makes me SICK.

As a surrogate it is NOT your decision where these babies go ... GIVE these helpless

little babies back to their parents ...' ." 2 In the 2014 conference in Melbourne by Families Through Surrogacy, VARTA was

a sponsor. A staff member was a co-organiser and VARTA staff acted as panel chairs

and spoke up at the conference in favour of surrogacy. At the 2015 conference in

Sydney, VARTA was again a sponsor. We do not think this pro-surrogacy bias should

be permissible for an organisation that is funded by all Victorian tax payers. VARTA

should at least try to be 'objective'. We have directly complained to the Chair of

VARTA, to no avail.


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integrated birth certificate restores information of the birth mother's identity and

ethnicity (if relevant) and gives the adopted person an option to reconnect with her

(extended) family of origin. Children born from 'altruistic' surrogacy too should be

able to connect with their birth mother, egg 'donor' (if there was one) and her other

children. At present, the birth mother's name on the birth certificate is deleted and

superseded by the baby buyers', aka commissioning parents', names.

Should 'altruistic surrogacy remain legal in Australia, great care will have to be taken

by the relevant state/territory or federal authorities to ensure that it isn't young women

from poor economic circumstances and/or unemployed women who are seduced by

false propaganda of bestowing 'the gift of life' to become egg 'donors' or surrogates.

Another group of young women, currently trafficked into Australia to enter the sex

industry, are at risk of being recruited by the surrogacy industry. Similarly, poor

women in countries that have now outlawed surrogacy for foreigners such as India

and Thailand could be 'invited' to visit Australia for a nine months' 'holiday', all

expenses paid.

Please note that, as we write these lines, we believe 'altruistic' surrogacy will always

be a harms regulation practice, something we know from the regulation of

prostitution will have loop holes that can be exploited by unscrupulous parties (e.g.

for every legal brothel in Victoria, there are 3 illegal enterprises and the harm to

persons in prostitution continues). Strict penalties will have to be applied to any

offending organisations or individuals.

2 Medical and welfare aspects for all parties involved, including regulatory

requirements for intending parents and the role of health care providers, welfare

services and other service providers

Since we advocate for commercial surrogacy to remain prohibited and

would prefer 'altruistic' surrogacy to be prohibited also, we do not wish

to provide 'harm minimisation' strategies for the listed groups. In the

next part of this Submission–3. Short- and Long Term Harms of

Surrogacy for Women–we will supply further details of the harmful

nature of surrogacy to the egg 'donor' and the birth mother.

Suffice to say here that a ban on transnational surrogacy as well as

commercial surrogacy in Australia has to be clearly communicated to

all health care providers, welfare services and other service providers.

In this context, the IVF industry and surrogacy lawyers will have to be

watched very closely, as they will not happily accept the evaporation

of their lucrative profits from surrogacy contracts and IVF treatments

involving egg 'donors', surrogates and, in some cases, former patients

who underwent IVF ten or more times until they were a) too old or b)

too sick to continue. With surrogacy legitimate, these women can now

become part of the 'commissioning parents'. If their egg cells can still

be used, they will remain patients of the IVF clinic and continue to pay

bills.


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3. Issues arising regarding informed consent, exploitation,

compensatory payments, rights and protections for all parties

involved, including children

As we have already stated in the FINRRAGE Principles above, we

do not believe that egg 'donors' and so-called surrogates can be

properly informed about the harms inherent in surrogacy, both to their

physical and mental health at the time of undergoing egg 'donation' and

surrogacy as well as years later. (We will add to this in 3. Short- and

long term Harms of Surrogacy for Women, see below.) We see

surrogacy in principle based on exploitation as well as class and race

power differentials.

We absolutely oppose payments for egg 'donors' as payments would

entice many young women (including students as in the US) to risk

their health and future fertility for supposedly 'easy' money. We are

most concerned that we responded to a 2014 survey by the NH&MRC

on payments for egg provision - only to receive yet another, almost

identical, survey in 2015. We worry greatly that the NH&MRC will

endorse this unethical practise, when what doctors should always abide

to is the principle of 'do no harm'.

We also believe, as already stated, that surrogacy a priori causes harm

to the resulting child because she or he was never consulted to be

removed from their birth mother. As stated above in Principles, we

believe this is a violation of the UN Convention on the Rights of the

Child which Australia has signed. Furthermore, IVF treatments carry

greater risk of premature birth and increased rates of diseases later in

life. And we can only speculate about potential emotional scars that a

child grown for nine months by a woman who has been indoctrinated

to say "this is not my child" will have. A perusal of advice given to

'ordinary' pregnant women about how to spoil their growing baby with

special foods, loving thoughts, preferred music, etc. indicates that

these scars might be substantial.

4. Relevant Commonwealth laws, policies and practices (including

family law, immigration, citizenship, passports, child support and

privacy) and improvements that could be made to enable the

Commonwealth to respond appropriately to this issue (including

consistency between laws where appropriate and desirable) to

better protect children and others affected by such arrangements.

We have already commented on immigration, citizenship and passport

under the first Term of Reference (see above, p. 7) as we advocate for

a prohibition of all transnational surrogacy arrangements. As many of

these issues are regulated by the Commonwealth, we believe there is a

strong rationale to create a new federal Statutory Body to oversee

surrogacy. However, we expect this will be resisted by

states/territories. We repeat that we believe it is absolutely crucial that

there is a uniformity of laws and their enforcement across Australia.


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We find the inclusion of 'child support' in the list above interesting. We

would go as far as to suggest that should a birth mother within an

'altruistic' surrogacy arrangement change her mind and keep her baby,

the relevant state/territory (or federal agency) might have to pay her

child support because, after all, their laws made it legal for her to enter

such a harmful arrangement.

5. Australia's international obligations.

FINRRAGE agrees with our European sister organisations CoRP et al.

that by allowing any form of surrogacy to be practised in Australia, we

are violating the following international Conventions and Protocols

(see pp. 22-28 for further details):

• The United Nations Slavery Convention;

• The International Convention on the Rights of the Child;

• The Optional Protocol to the Convention on the Rights of the Child on the Sale of

Children, Child Prostitution and Child Pornography;

• The Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW);

• The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children, Supplementing the United Nations Convention against

Transnational Organized Crime.

In addition to violating these international Conventions and Protocols, FINRRAGE

believes it is mandatory that Australia respects all countries that have closed their

borders to Australian citizens who wish to engage in surrogacy. We have not

discussed our objections to surrogacy in poor countries in this Submission because a)

it is so blatantly obvious that poor and illiterate women have been grossly exploited

(most notably in India, Thailand and Nepal) by baby buyers and their accessories (e.g.

surrogacy lawyers, consumer forums), but also, because the exploitation of these

women is generally accepted and has been documented frequently. Disturbing

viewing is afforded by these documentaries:

<http://www.sbs.com.au/news/dateline/story/indias-baby-factory>

<http://www.abc.net.au/foreign/content/2014/s3986236.htm>

<http://www.madeinindiamovie.com/>

Google Baby <http://blogs.wsj.com/speakeasy/2010/06/16/google-baby-

documentary-sheds-light-on-outsourcing-surrogacy/>

Unfortunately as more countries close their borders, others, such as Russia and

Ukraine expand their surrogacy 'services' and attract more Australian buyers. See

<http://www.rferl.org/content/womb_for_hire_ukraine_surrogacy_boom_is_not_risk_

free/24215336.html>. This story also lists the case of a French couple that is stranded

in Ukraine because France does not recognise babies born from surrogacy as French

citizens.

Great hopes appear to be pinned on a current working group on an International

Surrogacy Convention of the Hague Conference on Private International Law. In

December 2015, the federal Attorney General, Mr Brandis, appointed well respected

Chief Judge John Pascoe as the Australian delegate to this working group. The Hague

Conference, similar to the UN, produces a number of international Conventions such


13

as the Hague Intercountry Adoption Convention.

If an International Surrogacy Convention (months if not years from being formalised)

were to follow in the footsteps of the Hague Intercountry Adoption Convention, it

might allow transnational surrogacy but restrict it severely. The Intercountry

Adoption Convention places great importance on the rights of children and is in part

responsible for slowing down the rate of Australian intercountry adoptions over the

last decade that was reversed by the previous Abbott government allowing for

dangerous 'one-stop adoption' practices that are in the interests of adopting parents,

but not the children, to be re-introduced.

Moreover, the French Collectif pour le Respect de la Personne (CoRP) and affiliated

European and US sister organisations have sharply criticised the establishment of this

working group. They state (translation from French):

We have followed the project launched in 2011 by the Permanent Bureau of

the Hague Conference on Private International Law regarding the status of

children, in particular the conventions pertaining to surrogacy at the

international level.

A preliminary study and a preliminary document were published in March

2014. The preliminary document described plans for an international

instrument to facilitate mutual recognition and define “minimum standards” in

the domain of surrogacy. Given the impact of this kind of legal instrument on

the growth and legitimation of the practice in question, it is clear that studies

cited in these documents cannot be conducted without the broadest and most

inclusive consultation possible.

Indeed, the development of surrogacy contracts and, more broadly, of

numerous uses of surrogacy pose very serious questions in terms of

biomedical ethics, human rights, and the dignity of human persons and their

bodies.

To date, the Permanent Bureau has based its studies on its own preliminary

documents and on responses to questionnaires that it addressed to the States

and to the various participants in the transnational surrogacy process,

including health professionals, lawyers faced with situations of “surrogacy of

a transnational nature,” and surrogacy agencies.

In other words, the Permanent Bureau only included the perspectives of

professionals who are actively involved in surrogacy, not only stakeholders

but also promoters of the practice. ...

The question of any potential ban against the practice was not even raised,

despite the fact that it is strictly forbidden in a number of countries.

Beyond the respondents to the questionnaires, only sponsors or “intended

parents” were in fact asked for “feedback” from those involved in a surrogacy

convention of an international nature.

No questionnaire was directed towards the general public or NGOs committed

to defending human and more specifically women’s rights.


14

No discussion of the soundness of the practice or its compatibility with human

rights was initiated.

It is therefore unsurprising that the study’s conclusions are oriented towards

defining “minimum standards” and the need to harmonize the regulations

concerning recognition of foreign decisions concerning legal parentage.

Significantly, the preliminary document and the March 2014 study abundantly

cite lawyers involved in the market to support the idea of working on a text on

mutual recognition and regulation. The study never entertained the idea of

abolishing surrogacy as was done with slavery.

It is indispensable that the abolitionist point of view be considered and

that the defenders of human rights and human dignity be heard. The

Hague Conference should therefore not develop an international

instrument that, under cover of mechanisms for mutual recognition

associated with “minimum standards” would legitimize and oversee

surrogacy and the gigantic market that derives from it. This kind of

practice has no place in a civilized world.

FINRRAGE completely endorses the views of CoRPs and sister organisations. We

also support their call for a UN Convention for the Abolition of Surrogacy. As they

state:

CoRP therefore requests that the Hague Conference firmly recall that

transnational surrogacy is contrary to the principles underlying the Convention

on Intercountry Adoption as well as to the instruments for the protection of

human rights referred to earlier. It is imperative to go further by working at the

international level towards the abolition of surrogacy. The proper institutional

framework for developing one or several legal instruments to promote this

goal globally is the United Nations.

FINRRAGE sincerely hopes that Members of this Inquiry will take note that there are

thousands of concerned women and men around globe who do not support the

regulation of surrogacy and instead want this unethical and exploitative practice

abolished.

No doubt the Inquiry will be swamped with Submissions from pro-surrogacy forces.

Indeed, high profile Brisbane surrogacy lawyer Stephen Page (who is of course

entirely entitled to his views) had the following advice on his blog of 4.2.16 for the

Surrogacy Inquiry (<http://surrogacyandadoption.blogspot.com.au/>):

What I see needs to occur is quite simple:

enable the payment of surrogates and donors here, subject to a cap, so as to avoid exploitation

have a national model, with consistent laws, so that there is a seamless national approach

have a cascading approach for those going overseas- both before they go and after they come

back.

The simple steps of having a national approach will greatly decrease demand for those

wanting to undertake surrogacy overseas.

There will always be some intended parents who will nevertheless want to go overseas.

The cascading approach- for those who would still want to go overseas


15

Any regulation of those who go overseas is with the limitation of what happens before any

Hague Convention comes into effect, or concerning those countries that do not sign up.

Most of us have great confidence that surrogates, donors, intended parents and above all, the

children, are not exploited in some countries, such as New Zealand, US, Canada and the UK.

For those who wish to undertake surrogacy in these places, there should not be any barriers

for those who wish to bring their babies back to Australia- provided that citizenship issues

have been dealt with, there should be automatic recognition of the parent-child relationship.

For those who don't go to those countries, to undertake surrogacy overseas would be a

two stage process:

before they go-get approval from a court here. It would be assumed that for the purposes of

any guidelines that commercial surrogacy would be appropriate. The purpose of approval

would be to ensure that everything was above board, and in particular that it is clear that there

is a need for surrogacy, no exploitation of the surrogate or donor, and that the child will have

the opportunity of knowing who his or her donor might be- after the child turns 18.

then either get a court order from the overseas country; OR

get a court order from a court here.

It is not a requirement currently as a matter of law to tell the Department of Immigration and

Border Protection that a child was conceived via surrogacy. It ought to be.

For Australian expatriates who undertake surrogacy overseas, then the same basic rules apply,

except not requiring them to get court approval here first.

FINRRAGE sincerely hopes that Members of the Surrogacy Inquiry will not heed Mr

Page's advice.

6. The adequacy of the information currently available to

interested parties to surrogacy arrangements (including the child)

on risks, rights and protections.

This Term of Reference might be the only one where FINRRAGE

agrees with pro-surrogacy advocates, albeit for very different reasons:

we believe objective information on surrogacy is difficult to find in

Australia.

As with everything else we do in life, these days, Google is the answer:

Pro-surrogacy information is readily available from IVF websites,

consumer forums such as Surrogacy Australia, VARTA

(<https://www.varta.org.au/information-support/surrogacy/thinking-

being-surrogate>), other states' websites (e.g. Queensland's

<https://www.qld.gov.au/law/births-deaths-marriages-and-

divorces/surrogacy/>), and various websites from legal firms. The

Human Rights Law Centre has an overview article on surrogacy

<http://hrlc.org.au/regulating-surrogacy-in-australia/>.

The Family Law Council offers its views that commercial surrogacy

should become legal in Australia:

<https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Do

cuments/family-law-council-report-on-parentage-and-the-family-law-

act-december2013.pdf>.


16

Searching for 'critiques of Australian surrogacy' brings up articles by

ethicist Bernadette Tobin and academic Sonia Allan, and

commentaries by Melinda Tankard Reist:

<http://www.theage.com.au/comment/surrogacy-laws-may-be-a-

bridge-too-far-for-australia-20150420-1mosw7.html>

<http://theconversation.com/not-for-profit-the-case-against-

commercial-surrogacy-18512>

<http://melindatankardreist.com/2014/02/mother-erasure-how-the-

global-surrogacy-industry-discards-birth-mothers/>

<http://melindatankardreist.com/2014/08/surrogacy-reproductive-

prostitution-and-child-trafficking/>

We also found two of our own critical articles:

<http://www.theage.com.au/comment/baby-gammy-has-shown-the-

need-for-debate-on-surrogacy-20140819-105pfx.html>

<http://www.abc.net.au/religion/articles/2015/05/18/4237872.htm>

Simply typing 'Surrogacy' into Google yields 'about 1,820,000 results (0.52 seconds)'.

It is here where people desperate for their own children go and drown in information.

It should indeed be one of the Inquiry's first Recommendations that a Webpage be

created with relevant up to date information on surrogacy, both its legal status as well

as critiques and stories from those portraying it in a good light. Should 'altruistic'

surrogacy be allowed to continue in Australia, but be put under federal oversight

and/or uniform legislation in all states/territories, pertinent correct information must

be listed. Importantly, a realistic summary of the harm surrogacy can cause to egg

'donors' and so-called surrogates, has to be included. And an in principle definition of

what surrogacy is at its core: the exploitation of one or two women.

7. Information sharing between the Commonwealth and states and

territories.

As we have already indicated in our responses to the earlier Terms of

Reference, such sharing is currently woefully inadequate and must be

centralised and improved.

8. The laws, policies and practices of other countries that impact

upon international surrogacy, particularly those relating to

immigration and citizenship.

Again we have already commented on these issues under Terms of

Reference 1, 4 and 5. If (as we sincerely hope will not happen),

Australia were to introduce some form of 'compensated commercial

surrogacy', this could potentially open us up as a destination for

'Reproductive Tourism'. Whilst the pro-surrogacy lobby would no

doubt greatly welcome this financial gain (and the Australian

Government could reap taxes from such a lucrative increase), a new

category of 'surrogacy refugee' might need to be created both for the

parents from countries that prohibit surrogacy (i.e. most European

countries) and their children borne of surrogacy arrangements in

Australia.


17

We sincerely hope, that members of the Surrogacy Inquiry will not

want to go down this frightening path!

***********

Overall we were disappointed not to find a Term of Reference that

asks about overall prohibition of all surrogacy arrangements, or, at a

minimum, of continued prohibition of compensated/commercial

surrogacy. The terms of Reference seem to be geared towards

regulation and harms minimisation - approaches we truly hope will not

come to pass.


18

3. Short- and Long Term Harms of Surrogacy for Women3

In surrogacy, three women are harmed: the so-called surrogate mother, the egg

provider and the female partner in a heterosexual commissioning couple.

The part of the process to achieve a pregnancy is the most invasive in terms of daily

drug injections necessary to ‘ready’ the womb and endocrine system of the surrogate

mother for the embryo insertion. For the egg provider (who is a third party, or the

female partner), this phase involves putting her first into chemical menopause and

then dousing her with fertility drugs for superovulation: the production of dozens of

good healthy egg cells that can be extracted and then fertilised by the buyer’s sperm

to create embryos.

Daily painful injections, headaches, nausea, cramping, becoming bloated,

feeling sick, dizzy and emotional and putting on weight are just some of the

unavoidable adverse effects. Ovarian hyperstimulation syndrome (OHSS) can be life

threatening and has resulted in serious injury such as pulmonary complications when

the lungs fill with fluid which needs to be extracted, as well as stroke, and even death.

Equally worrying are the largely unknown long-term adverse effects of the drugs.

Many of them, such as Lupron, are used ‘off-label’, which means that they were never

registered for use in IVF, and as a consequence, no research was conducted to find out

about any short- or long term adverse effects when used in women. (In the USA the

FDA registered Lupron as treatment for prostate cancer.) It is a breathtaking and

world-wide scandal that no country including Australia has ever mandated its IVF

clinics to undertake short- and long term follow-up of the health of women

undergoing IVF and compare ill health to the drugs that were used in individual

treatments.

This is good news for pharmaceutical companies because such are the

variations in drugs used in IVF since the early 1980s that, even if such comprehensive

studies were finally (retrospectively) undertaken, it will be impossible to link certain

long-term adverse effects such as ovarian, uterine and breast cancer with specific

drugs. At best what can be established is that women who underwent IVF end up with

higher rates of these cancers, but not which drug(s) caused them. Or else it is the

women themselves who are blamed for the higher cancer rates.

This is what happened in October 2015 when a relatively large study that included

250,000 IVF users in the UK between 1991 and 2010 concluded that these women

had a one-third greater chance of developing ovarian cancer.4 Immediately women

were reassured that firstly these numbers weren’t very large and secondly, it was not

possible to prove ‘cause and effect’ of whether any of the IVF drugs were responsible

for the increased number of ovarian cancers. Rather, the researchers suggested it was

likely that infertility or ‘childlessness’ itself might be the cause(s) of the higher cancer

rates.

End of story, panic averted, back to IVF business as usual which of course

includes surrogate mothers and especially egg providers who often undergo the

‘eggsploitation’ procedure many times. ‘Eggsploitation’ is the name of a powerful

documentary produced by the US Center for Bioethics and Culture Network (2010-

3 This is an extract from a commissioned work in progress by FINRRAGE member Renate Klein.

4 <http://www.theaustralian.com.au/news/world/landmark-study-finds-fertility-trouble-linked-to-

ovarian-cancer-risk/story-fnb64oi6-1227575335254> Landmark study finds fertility trouble linked to

ovarian cancer risk. 20 October 2015.


19

2013) which through interviews with US women who had ‘donated’ their eggs as well

as health practitioners shows the serious dangers inherent in the process.5

This might be a good moment to address the point so much laboured by neoliberal

(feminist) pro-surrogacy groups, namely that it is these women’s ‘choice’ to become a

surrogate or egg ‘donor’ and that they had consented freely. A perusal of a dozen IVF

websites is enough to see that the possibility of serious adverse effects is not

mentioned. As one woman put it succinctly in ‘Eggsploitation’: “They don’t fill you

in on the health risks.” Even the rare mention that there might be some ‘unlikely’

long-term problems such as an increased number of cancers, is still incorrect. What

ought to be said to all women considering ‘donating’ eggs or going through IVF is

that in fact the studies have not been done, the research is not there: no one knows

what the health risks are!

Eggsploitation is defined succinctly in the documentary:

To plunder, pillage, rob, despoil, fleece, and strip ruthlessly a young woman of

her eggs, by means of fraud, coercion or deception, to be used selfishly for

another’s gain, with a total lack of regard for the well being of the donor.

Of course, the story does not end with the drugs. Egg harvesting, which takes place

under anaesthesia with a needle inserted through the vagina, then piercing the ovaries

and sucking ripe eggs out, can lead to the loss of an ovary when the puncture wounds

become infected or blood vessels are hit when retrieving the egg cells. This has

necessitated later blood transfusions if the bleeding remains unnoticed. It can also

lead to bladder or even bowel injuries if the needle is inserted wrongly.

Viewing ‘Eggsploitation’ should be mandatory for anyone even thinking of using an

egg ‘donor’ to fulfill their desire for an ‘outsourced’ child. This is especially

important for gay men as they always need an egg donor. The question we all must

ask is: how can anyone justify jeopardising a young woman’s health and possibly

life? How can such selfishness be publicly sanctioned by pro-surrogacy groups and, in

some countries, the state?

And there are many more problems with surrogacy as reproductive slavery.

What is rarely mentioned is that throughout the preparatory phase the three women

involved undergo a roller coaster of emotions. The egg provider may curse the

sickness and discomfort caused by the drugs that often severely interfere with her

daily life and work, but, if she is paid between $US 5’000 and 10’000 (or more) per

egg retrieval, as is customary in the USA, the prospect of good money will make her

grit her teeth and ignore the pain. The surrogate mother, already medicalised with

daily injections and frequent ultrasounds to monitor the lining of her uterus and

hormonal levels, is entering the next nine months of bondage where her life is not her

own anymore.

And what about the female partner of the commissioning couple who is not

the egg donor? To the outside world she is a happy part of Team Baby when on the

inside she might feel like a phenomenal failure: she should be the one getting

pregnant, but she cannot. Selecting an egg provider by looking at porn-like photos of

young beautiful women on the internet and ‘choosing’ the provider of half the genes

of what will become ‘her child’ can unleash painful emotions that cause deep grief.

5 In 2015, the Center for Bioethics and Culture Network also produced a follow up documentary

‘Maggie’s story’ who tells the sad story of Maggie who ended up with advanced breast cancer after

more than ten egg extractions. Another excellent documentary on the subject of surrogacy is called

‘Breeders: A Subclass of Women’ (2014), see <http://breeders.cbc-network.org>


20

And if she has any knowledge of the potential risks to the egg provider, her

conscience about potentially injuring another woman might cause her sleepless nights.

If the embryo transfer is successful and a pregnancy starts, this brings many new

challenges and potential health problems. Because the IVF clinic wants to ensure that

the commissioned baby will be free of ‘defects’, the pregnant woman has to submit to

a battery of prenatal tests which may even lead to a mandated abortion, possibly

against her own beliefs. If more than one embryo was inserted and too many ‘take’,

selective foetal pregnancy ‘reduction’ may be done which entails the grueling

injection of potassium chloride (a salt) into the heart of one of the growing foetuses

which then shrivels away in the body next to the foetus(es) that are ‘allowed’ to

continue to grow. This is difficult to envisage even for women who support a

woman’s right to abortion, but must be close to unbearable for a woman who is pro-

life. Yet the contract the so-called surrogate signed mandates it. There may also be

repair surgery on the foetus conducted in utero if the commissioning couple is

determined to have a baby at any price. It’s one thing to write these lines: imagine if

you were the woman in whose body such procedures are carried out?

The answer to such unwanted pain is the idea of dissociation. It is crucial that

the pregnant woman is told again and again - until she internalises it herself - that

these growing cells in her uterus that are sustained by blood vessels she develops

exclusively for this purpose and which feed the developing baby nutrients including

calcium from her bones has nothing to do with her: because she did not contribute her

genes to the baby.

But genes are not the only bond between a mother and her baby. It is not well

known that even decades after her child is born the birth mother still has a few of her

or his cells in her body. Likewise some of her own cells are passed on to the child.6

And during pregnancy so much else is shared as discussed in advice books for

‘ordinary’ pregnant women about the importance of stress, smoking, alcohol, certain

foods and the moods of a pregnant woman as well as the music she listens to which

are said to all influence the health and likes of the future child.7

It is bizarre to hear commissioning couples proclaim that the baby growing in

another woman’s body is ‘their’ genetic child – even more so when they have used an

egg donor who contributed half the nuclear genome (nDNA) to the developing child.

But it gets even more bizarre because every egg cell also includes mitochondrial DNA

(mDNA): different and separate from nDNA. “Mitochondria are the energy-

producing factories of the cell: without them a cell would not be able to generate

energy from food” (Beekman, 2015).8 And mDNA is passed on only via the mother;

6 In ‘Cell Migration from Baby to Mother’ (Gavin S. Dawe et al. 2007) the authors describe how a

small number of cells traffic across the placenta during the pregnancy and how “this exchange occurs

both from the fetus to the mother (fetomaternal) and from the mother to the fetus.” 7 Life before birth, now renamed ‘foetal programming’ or ‘disease origins’ is increasingly frequently

examined. See for example, Thin Vo and Daniel B Hardy (2012) ‘Molecular mechanisms underlying

the fetal programming of adult diseases’ <http://www ncbi nlm.nih.gov/pmc/articles/PMC3421023/>.

As to food regulations, no alcohol, no salt, no sugar might be the basics to start with, but no doubt

many other forbidden foods might be added including a host of recommended supplements. And how

do you forbid stress?

8 ‘Do you share more genes with your mother or your father?’<http://theconversation.com/do-you-

share-more-genes-with-your-mother-or-your-father-

50076?utm_medium=email&utm_campaign=The+Weekend+Conversation+-

+3848&utm_content=The+Weekend+Conversation+-


21

as Madeleine Beekman puts it: “Because all mitochondria you received come from

your mother only, you are technically more related to your mum than to your dad.”

Your ‘mum’ in a surrogacy situation is thus the egg ‘donor, your ‘mother’ is the birth

mother in whose body the baby develops and swaps cells. Sperm donors beware: you

are only half as important as you think you are.

But to the brainwashed general public including the media, the egg ‘donor’

does not exist and the birth mother is a suitcase, an oven, in which a ‘passenger’ (a

term increasing frequently used by surrogates themselves) spends a few months until

s/he plops out of the womb into the arms of their ‘real’ parent, their father. It is the

21st century’s legacy of the Homunculus theory promoted by Aristotle in the fourth

century BCE when he assumed that a pregnant woman was but a vessel for the male

sperm (formed in the brain!) which already contained a fully formed male human

being! Is this science or neoliberal ideology?

Stripping both egg ‘donor’ and pregnant woman of their vital importance goes

to the core of the dream of reproductive biologists to one day produce the motherless

baby. But until ectogenesis is perfected, the real-life pregnant woman is so truly

brainwashed that she agrees with the fallacy that this is not her child and happily calls

herself a ‘surrogate’ mother – postmodernism gone wild.

Lastly, the birth, usually marking the beginning of a new human being’s

entrance into their mother’s life, sadly, in the context of surrogacy, is the end of this

relationship forged over nine months. In most cases the baby is born via a caesarian

section which means that the birthing woman is anaesthetised and often does not get

to see her baby. What she is left with is a heavy heart and breasts full of milk. But as

she has been indoctrinated to consider this baby her great act of kindness for a

deserving couple, this is what she will tell herself, trying to forget whatever bond

there was – until for some women, not all, the experience will surface as pain, regret

or anger, often years later.

And what about the female partner in a heterosexual couple that now has to be

the joyous parent to a brand new baby that is not hers? While some women will

happily adopt this long wished-for role, for others, this baby will be a daily reminder

of what she perceives to be her greatest failure: to become a mother herself. This

chapter of the surrogacy story remains unwritten because no one has yet bothered to

find out what these 'social mothers' feel and think and what relationships they will

develop with this 'foreign' child.

+3848+CID_61a7cc1a201fc294d7e8dd96475391da&utm_source=campaign_monitor&utm_term=Do

%20you%20share%20more%20genes%20with%20your%20mother%20or%20your%20father>


22

4. CoRP et als. List of International Protocols and Conventions

that Surrogacy Violates.

Excerpt of pp. 13-23 (minus FNs), translated from French, from:

Contribution of a grouping of Feminist and Human Rights Organizations to the work of The

Hague Conference on Private International Law regarding legal issues concerning international

surrogacy conventions (“parentage/surrogacy project”)

Comments on Preliminary Document No 3 B of March 2014 and Preliminary Document No 3A

of February 2015

III ANY INSTRUMENT TENDING TO ORGANIZE OR REGULATE THE PRACTICE OF

SURROGATE MOTHERHOOD IS INCONSISTENT WITH THE INTERNATIONAL TEXTS

CURRENTLY IN FORCE

A) The practice of surrogacy is contrary to the objectives of THE Convention on

inter-country adoption

Studies such as that proposed by the preliminary document of March 2014 risk placing the Hague

Conference in an untenable internal contradiction.

Every international instrument, binding or not, whose purpose or outcome is to endorse, organize, or

supervise the practice of surrogacy will be in open contradiction with the founding principles of the

Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, playing

havoc with its objectives.

Of course, adoption and surrogacy are not identical in every way, because within the framework of

surrogacy, the genetic material of one or more of the sponsors is utilized, at least in theory.11

Nevertheless, in both cases, it is a question of abandoning parental rights, at least by the birth mother,

and the breaking of legal parentage. Parental rights are transferred to other persons, and a legal

parentage is established between these other persons and the child.

Under some laws, the implementation of surrogacy also entails the abandonment of parental rights by

the partner of the surrogate mother, the child’s presumptive father.

Furthermore, in a certain number of laws, the legal mechanism chosen to implement surrogacy is

rigorously inspired, from a formal perspective, by the mechanisms of adoption. For example, in the

United Kingdom (although there are other examples), the surrogate mother is the legal mother of the

child at birth, and the sponsors acquire “parental” status only through judicial issuance of a “parental

order,” for which an application must be filed with the court within six months of the birth.

Moreover, the entire mechanism of surrogacy is in complete contradiction with the expressed goal of

protecting the weak that underlies the Convention on International Adoption.

Indeed, the Convention on Intercountry Adoption is not intended solely to protect the legal security of

transnational adoptions.

The Convention also seeks to ensure in a deeper sense international adoptions, with the objective of

giving a family to a child who cannot be raised by his or her birth parents nor be adopted in his or her

country of origin; these regulations are not meant to cover practices of purchasing and selling children

or exploiting the reproductive services of third parties.

To this end, Article 4 of the Convention specifies that “An adoption within the scope of the Convention


23

shall take place only if the competent authorities of the State of origin: (...) c) Have ensured that (...)(3)

the consents have not been induced by payment or compensation of any kind and have not been

withdrawn, and (4) the consent of the mother, where required, has been given only after the birth of the

child (...).”

The Convention thus simultaneously forbids any arrangement prior to the birth of a child and all

remuneration, whether monetary or in compensation for the remittal of the child by its genitors, and in

particular by his or her birth mother.

This is not simply a question of legal terminology.

This regulation has meaning.

Its purpose is to ensure that transnational adoption does not cover a practice consisting, for residents of

wealthy countries, in appropriating the reproductive capacities of poorer countries, based on financial

exchanges.

Surrogacy is founded on a strictly contrary logic: It explicitly assumes in every case a prior

arrangement and also always includes, whether explicitly or de facto, quasi- systematic monetary

compensation.

1) The prior arrangement is the very basis of surrogacy:

1 The child is conceived to be remanded to the contracting couple;

2 The surrogate mother carries out the pregnancy, with all of the associated risks and psychological

and affective implications, to satisfy the request of a third party;

3 In many cases, the mother cannot legally question her consent after the child is born or employ any

other effective legal means of preserving her maternal status (see in particular on this point

American jurisprudence relating to conflicts of parental rights in the context of surrogacy).

When legislation preserves in theory the surrogate mother’s right to change her mind, it

does not fundamentally change the situation: There is a prior agreement. It is to execute this

prior agreement that the surrogate mother carries the pregnancy. Ultimate consent can be

given legally after the birth, but that does not remove the fact that the surrogate mother

committed herself beforehand to carry the pregnancy and to remit the child to the

commissioning couple or individual whose “genetic material” (or that of at least one of them)

has generally been utilized. The freedom that the surrogate mother disposes of to renege on

this commitment is purely theoretical. Not only is the situation psychologically inextricable

(keeping a child conceived for a third party), it is legally impossible to rule on. In fact, it is the

contracting couple who, by emphasizing the eminently manipulable notion of the best interest

of the child or the parties’ intentions, usually obtain satisfaction.12

When the law

systematically sides with the commissioning couple or individual, the surrogate mother’s

chances of asserting her rights are non-existent.

2) There is always compensation, usually monetary:

• Openly commercial surrogacy does not conceal the existence of the remuneration, although the

precise terms used do vary (“fees,” “compensation,” etc.).

• Even when the law authorizes only supposedly non-commercial surrogacy (also called “altruistic”),

the “reasonable expenses” paid to the surrogate mother, which are added to medical expenses,

in reality mask a form of remuneration, albeit modest.

• The use of the term “payment of compensation” or “reasonable expenses” is often intended to mask

remunerative practices. The practical difference between remuneration and compensation for

expenses is very often a highly delicate question of bio-ethics. The amounts, duration of the


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period covered, and the basis for the compensation can transform it into true remuneration. As

a consequence, compensation for lost wages, when it covers an extended period of time, as is

the case for surrogacy, plays precisely the same role as that of a salary. The case is similar

with the question of clothing or other expenses. The flat-rate nature of such “compensation”

approaches the idea of remuneration. For example, in the United Kingdom, “reasonable

expenses” pre-established by the parties and validated by the judicial system, which cover

clothing and transportation and loss of wages, can be higher than 10,000 £.

The COTS

announces expenses that must be paid to the surrogate mother of between 12,000 and 15,000

£.The Permanent Bureau furthermore recognizes itself that it is extremely delicate to

distinguish between commercial and non-commercial surrogacy (see the “glossary” of the

preliminary document of March 2014).

• Therefore, without creating profound incoherence in its legal system, the Hague Conference

cannot legitimate within the framework of surrogacy practices that it seeks at the same time to

suppress in the framework of adoption. It cannot simultaneously combat the marketing of

children and the exploitation of the reproductive capacities of others in the context of

international adoption and, on the other hand, organize the same practices in the context of

surrogacy provided that safeguards (weak ones, moreover) are created.

B) The practice of surrogacy is incompatible with numerous other international legal

instruments

1) The United Nations Slavery Convention

Article 1 of the convention of September 26, 1926 concerning slavery defines slavery as

“ the status or condition of a person over whom any or all of the powers attaching to the right of

ownership are exercised.”

According to this definition, there can be a situation of slavery even in the absence of appropriation, as

was the case in older forms of slavery, of the entire person. It is enough to appropriate the usage or

products of a person.

Surrogacy closely resembles a modern form of slavery according to this definition.

Commissioning couples or individuals acquire a real right over the body of a woman because they

acquire the right to use her person and her body (because pregnancy implicates considerably more than

her uterus).

They also acquire the right to take the fruit of the woman’s body (or rather the products), i.e., one or

several children.

Because the surrogate mother cannot in reality withdraw from the arrangement, and is not always

authorized under the law to do so once the pregnancy has begun, she loses control of her body and

finds herself in a situation that is comparable to slavery.

3) The International Convention on the Rights of the Child

Article 7 § 1 of this convention stipulates “The child shall be registered immediately after birth and

shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the

right to know and be cared for by his or her parents.”

The International Convention on the Rights of the Child does not define what is meant by “parent.” It

is nevertheless unarguable that the first individuals who should be considered as “parents” are a child’s

so-called “biological” parents, and in particular the mother who carried him or her.

Children thus have the right, to the extent possible, of knowing the mothers who brought them into the

world and carried them for nine months, and to be raised by her.


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There are circumstances under which this is not possible. In addition to cases of death or certain

particular situations of separated parents, the abandonment of children, regardless of the reasons,

creates a situation in which the child does not have the possibility of being raised by his or her birth

mother, or even of knowing her.

In the case of the parents’ death or abandonment, the parental role is assumed, whenever possible, by

adoptive parents. But in no case should the abandonment of the child or of his or her separation from

the mother who brought them into the world be brought about to benefit the interests of the contracting

couple or individual, regardless of who they are and their ability to raise a child.

It is not sufficient to modify the legal definition of what is a “parent” and to deny the status of the

woman who brought the child into the world to evacuate the meaning of the provisions of the

International Convention on the Rights of the Child.

Surrogacy thus violates Article 7 § 1 of the Convention on the Rights of the Child.

Article 9 § 1 of The International Convention on the Rights of the Child furthermore stipulates that

“States Parties shall ensure that a child shall not be separated from his or her parents against their will,

except when competent authorities subject to judicial review determine, in accordance with applicable

law and procedures, that such separation is necessary for the best interests of the child. Such

determination may be necessary in a particular case such as one involving abuse or neglect of the child

by the parents, or one where the parents are living separately and a decision must be made as to the

child's place of residence.”

The practice of surrogacy in many cases leads to a violation of this stipulation. For example, in general,

the surrogate mother who changes her mind after the birth can preserve her status as mother and her

parental rights sees these rights refused by the law, either in the name of the prior commitment or of a

supposed best interest of the child interpreted in favor of the contacting couple (see again American

jurisprudence, as well as British law, as referred to above). The result is in effect the separation of the

child from his or her mother, against the mother’s wishes and despite the fact that she cannot be

accused of mistreating or neglecting the child nor any other omission.

Finally, Article 35 of The International Convention on the Rights of the Child stipulates “States Parties

shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the

sale of or traffic in children for any purpose or in any form.”

The practice of surrogacy consists of entrusting a woman in exchange for remuneration (sometimes

called “compensation”) the task of carrying and birthing a child destined to be remitted to the

contracting couple or individual after the birth.

This thus represents the sale of a child in the sense of Article 35 of the International Convention on the

Rights of the Child.

4) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child

prostitution and child pornography

The terms of Article 2 a) of this Protocol stipulate:

“Sale of children means any act or transaction whereby a child is transferred by any person or group

of persons to another for remuneration or any other consideration (...).”

As indicated earlier with regard to Article 35 of the International Convention on the Rights of the Child,

the practice of surrogacy, to the extent that it organizes the conception, gestation, and relinquishment of

the child in exchange for remuneration or other compensation, constitutes the sale of a child in the

sense of the Protocol.

Furthermore, Article 3 of the Protocol stipulates:

“1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully

covered under its criminal or penal law, whether such offences are committed domestically or


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transnationally or on an individual or organized basis: (a) In the context of sale of children as defined

in article 2: (...) (ii) Improperly inducing consent, as an intermediary, for the adoption of a child in

violation of applicable international legal instruments on adoption.”

It is recalled that the practice of surrogacy is contrary to the convention on international adoption.

It thus cannot be authorized by government legislative action, or a fortiori by an international legal

instrument, but should instead be suppressed by criminal law.

4) The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Article 3 of this convention stipulates that “States Parties shall take in all fields, in particular in the

political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure

the full development and advancement of women, for the purpose of guaranteeing them the exercise

and enjoyment of human rights and fundamental freedoms on a basis of equality with men.”

The practice of surrogacy involves appropriating in a specific manner the reproductive capacities of

women. It leads to the implementation of an extremely firm control over every aspect of women’s lives

during pregnancy and endangers their physical and psychological health in order to satisfy the desires

of sponsoring third parties.

In this sense, the practice is profoundly discriminatory and is contrary to the objective of the full

development of women and of progress towards women’s full enjoyment of their fundamental human

rights.

Further, Article 6 of the CEDAW convention stipulates that“ States Parties shall take all appropriate

measures, including legislation, to suppress all forms of traffic in women and exploitation of

prostitution of women.”

Surrogacy involves exploiting the economic and/or social vulnerability of certain women in order to

encourage them, in exchange for remuneration, to place their reproductive capacities at the service of

richer individuals. This practice therefore can be seen as similar to the trafficking of women.

5) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,

supplementing the United Nations Convention against Transnational Organized Crime

According to the terms of Article 3 of this Protocol: “ “Trafficking in persons” shall mean the

recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of

force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a

position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of

a person having control over another person, for the purpose of exploitation. Exploitation shall include,

at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced

labor or services, slavery or practices similar to slavery, servitude or the removal of organs.”

The exploitation of the reproductive capacities of women by making her body and mind available for

many months in order to implant an embryo in her and have her carry a pregnancy to term for the

purpose of giving up the child to the contracting couple or individual resembles a form of sexual

exploitation.

Further, while there is clearly no removal of organs, there is organ rental, i.e., the rental of the woman’s

uterus (without even considering all of the other organs that are impacted), for the purpose of

fabricating a child intended to be handed over.

This therefore counts as exploitation in the sense of Article 3 of the Protocol.

In addition, there is often trickery concerning the reality of the physical and psychological risks

involved as well as systematic abuse of the economically or socially—or even psychologically and

emotionally--vulnerable situation of the woman used as an incubator by third parties.

This can therefore be considered trafficking.


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6) Regional Instruments

For the same reasons indicated involve the Convention on International Adoption, surrogacy is

contrary to the objectives of the European Convention on the Adoption of Children, which stipulates in

Article 5 that “A mother’s consent to the adoption of her child shall be valid when it is given at such

time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no

such time has been prescribed, at such time as, in the opinion of the competent authority, will have

enabled her to recover sufficiently from the effects of giving birth to the child..”

The explanatory report on this convention clearly demonstrates that the goal of this disposition is “ to

avoid premature adoptions to which mothers give their consent as a result of pressure exerted before

the birth of the child or before their physical health and psychological balance have been restored

after the child’s birth.”

Even when legislation contains provisions for final consent by the surrogate mother following the birth

and beyond the terms contained in this convention, the objective of this stipulation is disregarded:

Everything is set up in the framework surrounding surrogacy to encourage the surrogate mother to

agree to hand over the child at the specified time. Furthermore, it was for this sole purpose that she was

recruited and the embryo was implanted in her body. The entire system is a collection of pressures

intended to encourage abandonment and submission of the child by the mother who bore him or her.

Surrogacy is also, for the same reasons as those discussed earlier for the Protocol on human trafficking,

contrary to the Council of Europe Convention on Action against Trafficking in Human Beings, the so-

called Warsaw Convention.

Similarly, it is contrary to Article 21 of the Council of Europe Convention on Human Rights and

Biomedicine, the so-called Oviedo Convention, which stipulates, “The human body and its parts shall

not, as such, give rise to financial gain.”

The professionals and intermediaries who are involved in the surrogacy process earn profits that are in

fact significant on a pregnancy brought to term by a surrogate mother whom they have engaged for the

purpose. Moreover, in carrying a pregnancy to terms, in the best of cases, the surrogate mother does

not supply labor, but purely and simply places her body and biological processes linked to the state of

pregnancy at the disposal of the agencies and contracting couples and individuals.

Exploiting the biological processes of a woman’s body in this way, surrogacy uses the human body as a

source of profit, contrary to the stipulations cited earlier.

C) The legal instrument as proposed in the preliminary document of March 2014 must be

rejected

The Hague Conference should therefore not develop an international instrument that, under cover of

mechanisms for mutual recognition associated with “minimum standards” would legitimize and

oversee surrogacy and the gigantic market that derives from it. This kind of practice has no place in a

civilized world.

Further, any system of mutual recognition would make the situation even more delicate for the States

which, for ethical reasons recalled in part II, forbid surrogacy, because it would incite the resident of

those countries to go abroad in order to evade the domestic legal ban on the practice.

Let us consider Spain. Although the practice of surrogate motherhood is forbidden and criminalized in

Spain, the resulting birth certificates and other civil documents are recognized, even though this

recognition is limited to biological paternity since a ruling by the Constitutional Tribunal. As a result,

Spanish clients are actively targeted by surrogacy agencies, particularly Ukrainian and Mexican, and

their numbers exploded to over 800 in 2013).

CoRP therefore requests that the Hague Conference firmly recall that transnational surrogacy is

contrary to the principles underlying the Convention on Intercountry Adoption as well as to the

instruments for the protection of human rights referred to earlier.

It is imperative to go further by working at the international level towards the abolition of surrogacy.


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The proper institutional framework for developing one or several legal instruments to promote this goal

globally is the United Nations.

IV FOR THE ADOPTION OF AN INTERNATIONAL CONVENTION TO ABOLISH

SURROGACY

In spite of the numerous texts cited earlier that enable surrogacy to be considered contrary to

international legal framework established to protect human rights, a specific instrument is needed to

effectively promote the abolition of this practice as firmly as possible.

It is therefore urgent that an international convention abolishing surrogacy be developed within the

framework of the UN based on the working model achieved against slavery and analogous practices for

the 1926 Slavery Convention and the Supplementary Convention on the Abolition of Slavery, the Slave

Trade, and Institutions and Practices Similar to Slavery in 1956.

In order to render a ban on surrogacy and the struggle against this practice fully effective, provisions

also need to be established stipulating legal punishments that criminalize surrogacy, or at least the

intermediary activities surrounding surrogacy.

These stipulations could either constitute part of the abolition convention or be included in an

additional protocol thereto. This second option could enable the abolition convention to generate

broader support concentrated on banning the principle and measures to be taken to cause the practice to

decrease. This would permit the most willing States to establish criminal cooperation to more

effectively combat the practice.

This protocol could be inspired by texts related to criminal cooperation that already exist relative to the

field of trafficking in its broader sense, including:

• The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the

Prostitution of Others;

• The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and

Children, supplementing the United Nations Convention against Transnational Organized Crime.

• The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child

prostitution and child pornography.


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Inquiry into Surrogacy Submission 70

Documents

Transcript of Inquiry into Surrogacy Submission 70