Why paying surrogate mothers for pregnancy is illegal as Australia considers major law change
Around the world, the act of hiring another person to carry your baby isn’t as common as it is in the US or even the UK, and with that comes strict regulations or laws against it.
While you might have thought that Australia carried similar thoughts on surrogacy for those who either cannot carry their own child or choose not to for various reasons, you’d be forgiven for the mistake.
In fact, the Australian government is only just looking to reform some parts of the process, and even then, many people on social media don’t think it’s enough.
As of right now, it’s illegal to pay a person to carry your child, but after a new suggestion was made, people aren’t exactly thrilled, despite it being an option many might opt for.
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So, let’s get into the law, the changes, and what it all means.
What is the current Australian law on surrogacy?
In Australia, only altruistic surrogacy is allowed right now, where it is totally prohibited to pay another person to have your baby.
While the parents are legally permitted to reimburse the surrogate for their medical, travel and legal fees, that’s pretty much all they have to do.
That means they don’t have to pay the surrogate a flat fee to carry the baby in their womb for the 40 weeks (more or less).
If you are an Aussie citizen who wants to engage in surrogacy outside of the country, the NSW, Queensland and the ACT territories can actually apply criminal sanctions to prospective parents for paying commercially.
But why?
Why is it illegal to pay surrogates in Australia?
Under the Australian government's rules, intended parents may ‘advertise for a surrogate, provided that it is for an altruistic surrogacy arrangement’.
It’s also totally legal for another person to help ‘connect potential surrogates with intended parents for an altruistic surrogacy arrangement’, but you cannot pay someone to become one, either in Australia or abroad.
In some cases, surrogacy agreements overseas might not transfer legal parentage to the intended parents, but rather keep the surrogate as the child's legal parent.
At the moment, citizens can use their own egg to conceive a child or use a donor egg and sperm. But in a bid to protect women and children, surrogacy will be considered ‘commercial’ and an exploitation if they are paid for their service.
This is because money might become an incentive to do it, or a way to 'bribe' someone into committing to the procedure.
That’s why you can pay their expenses, but cannot provide a fee for the pregnancy. It’s also why only a court can agree to allow a person under 25, but older than 18, to become a surrogate.
For those over 25, they are free to choose without court interference. But all of this might change with the new payment suggestion.
What are the surrogacy law changes in Australia?
Surrogates might soon receive monthly payments of up to $2,000 for the ‘pain and discomfort of pregnancy’.
The recommendations have come after it was found that 369 children were born through surrogacy arrangements and became Australian citizens via overseas surrogates last year, the Sydney Herald reports.
The Australian Law Reform Commission have called the current laws ‘confusing, restrictive and not fit for purpose’ and has since called for a new regulator to oversee the process.
The federal government’s independent legal advisory body went on to claim: “The limited availability of domestic surrogates drives intended parents to access surrogacy arrangements overseas.
“These arrangements may be exploitative, and create other harms experienced in Australia for intended parents and children born through surrogacy, such as challenges obtaining legal parentage.”
To increase the amount of domestic surrogates in Australia, the commission has recommended reimbursing them for other costs not currently recognised under the system.
This could be an ‘optional monthly payment to recognise the ordinary pain and discomfort of pregnancy’, and for extraordinary medical complications too, on top of the fees already recognised under the law.
What does this mean for the future?
“The law does not currently allow payment that recognises the full range of costs and losses associated with being a surrogate,” the commission has said, per The Sydney Morning Herald.
“It fails to acknowledge the significant physical, emotional and sometimes ongoing costs to the surrogate. It can also symbolise a lack of respect for the surrogate within a highly monetised system, where many others are paid.”
The commission said it will keep surrogacy not-for-profit, with payments between $1000 and $2000 applicable (£507-£1010).
Surrogacy Australia operations manager Anna McKie also told the outlet that this is 'a small amount to thank her for the physical and emotional toll that stays with her for the rest of her life'.
While some have criticised the move as not paying enough to make being a surrogate worth it, others online have said how they would do it for free, given the chance, to make another family happy.
One commenter wrote of the proposed changes: “For 9 months plus postpartum recovery (3 to 6 months)? Nope,” while another said: “Not worth it.”
We’ll see what comes of it.
Britt Jones