An Estimated 10-15 per cent of Australian couples who want to start a family are infertile, similarly same-sex couples are unable to reproduce and this has led to the use of surrogacy and birthing technologies to provide a means to overcome such barriers in having children. The changing views of society along with the corresponding reforms of the law in relation to these procedures have been main contributors to contemporary issues within the area being addressed, however the effectiveness of legal and non-legal measures in place is questionable. With diverse perspectives and interpretations on what is a just outcome for all parties involved, it is difficult to evaluate such a controversial matter. Issues relevant today in relation to surrogacy include the exploitation of women overseas through commercial surrogacy as well as the presumption of parentage and parentage orders, even with the approval of legal measures dealing with such problems, conflict of views indicate many people do not agree and feel there is a great need for reform. Birthing technologies hold many interrelated issues of concerns with difficulties in defining legal parents in relation to birth certificates as well as the roles and responsibilities of gametes donors. The amendment of previous laws in addition with the introduction of new ones aim to better reflect the changing values of society with non-governmental organisations and the media attempting to assist in informing the public and creating awareness with current issues.
Surrogacy is a difficult issue, especially in Australia where the law varies from state to state. Many infertile Australian couples seek the services of surrogate mothers overseas in the United States, India and other countries, spending up to $80,000 and risking breaking the law. The current issue of concern in this, is not only the exploitation of poor women but also the Australians being overcharged by these clinics as well as the legal status and protection of children caught up in the booming overseas surrogacy trade.
Currently under Australian law, altruistic surrogacy is acceptable however commercial surrogacy is banned in all states, excluding the Northern Territory with no current legislation targeting surrogacy. The Surrogacy Act 2010 was designed to accommodate altruistic surrogacy moving against commercial surrogacy, while setting out safeguards to achieve the best interest of the child and attempt to uphold all surrogacy agreements. This can be seen as an effort to sufficiently reflect societal views within the law as a 1993 survey revealed community attitudes towards commercial surrogacy had a 30% approval rate whereas 59% disapproved.
Since its commencement in March 2011 overseas commercial surrogacy arrangements have also been made illegal in NSW, Queensland and the ACT, with the NSW Parliament introducing extraterritorial provisions that extend the offence to outside the jurisdiction for residents, who could possibly face fines of up to $100,000 or up to 2 years prison if caught. This legal measure however is questionable in its ability to achieve the best outcome for the child, being a punishable offence and enabling the imprisonment of parents or subjecting them to a financial hardship could only worsen the situation for a child involved. Moreover this amendment to the bill was willfully added with little review of its consequences, motivated to reduce the exploitation of poor women in developing countries, it fails to ensure the best interest of the child and that justice is achieved. Failure of existing law has led to a further need for reform as the criminalization of overseas arrangements is difficult to police and unenforceable which has created issues of compliance and non-compliance. Currently an estimated 40 per cent of India’s $2.5 billion commercial surrogacy industry is made up of Australian clientele, however complaints about the overcharging nature of these clinics are...
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