SURROGACY ARRANGEMENTS: THE LEGAL AND ETHICAL PERSPECTIVES
VICTORIA LAMBROPOULOS *
Modern western societies have strong ethical objections to surrogacy arrangements. This is irrespective of whether they are performed for altruistic purposes or for commercial gain. At common law, and in many civil law countries, surrogacy contracts were illegal because they were considered to be contrary to public policy and against the public interest.
One major reason why surrogacy provokes such a negative reaction is that it, more than other modes of assisted reproduction seems to offend deeply held views in our society regarding family and the origins of family. "It also challenges our views on maternal instinct"1 and the role a woman has in the bearing of a child and the then subsequent rearing of that child.
STRUCTURE OF THIS PAPER
A. Common Terms and Introduction;
B. What is surrogacy: A definition;
C. Modern history and development of surrogacy law;
D. A global view of surrogacy law;
E. The ethical debate;
F. Conclusion.
COMMON TERMS 2
Assisted Human Reproduction (AHR) - A range of procedures designed to assist a couple or an individual to conceive a child with medical assistance. Procedures may involve the use of donated sperm, egg or a donated embryo to bring about conception.
Donor - A person who gives an egg or sperm to assist another or others to conceive a child.
Donor Eggs - Eggs (oocytes or ovum) that have been given by one woman to another for use in human conception.
Donor Embryo - An embryo that is given by the persons whose gametes created it, for use by another in human conception.
Donor Gamete Conception - Conception achieved using donor sperm or a donor egg without sexual intercourse, either:
- With medical assistance or the assistance of a fertility clinic;
- Or through self-insemination.
Donor Sperm - Sperm contained with semen, that has been donated by a male to a person who is not his wife or partner for use in human conception.
Embryo - A term used to refer to a fertilised egg (or "zygote") until approximately the end of the eighth week of gestation.
Full Surrogacy - Where the child has no genetic relationship with the surrogate mother. That is, the woman who carries the child to term.
Gametes - Human cells necessary for sexual reproduction, that is, eggs in women and sperm on men.
In Vitro Fertilisation (IVF) - Fertilisation occurring outside the human body where eggs, collected from a woman, are fertilised with sperm in a laboratory.
Partial or Traditional Surrogacy - Where the child is the genetic child of the surrogate mother.
Self - Insemination - A procedure by which semen is inserted by a woman into her vagina without medical assistance (typically by using a needle-less syringe).
Semen - Fluid containing sperm that is released from the male genital tract.
Sperm - Male reproductive cells necessary for the fertilisation of an egg.
A. INTRODUCTION
Surrogacy seems to provoke extreme emotional responses in people. This is best illustrated by an experience of my own. I was supervising law students who volunteer at a community legal centre in Melbourne. One of the students came into my office and told me a couple came in and they were seeking general adoption advice. They wanted to adopt out their four year old son who had been living since birth with the husband's brother and his wife. They themselves already had four children and did not need anymore. The husband's brother and his wife were not able to have children so they gave them one of their own. When the student told me this I first questioned him as to whether he had understood them properly. He politely said yes. Then I said quite emphatically "What type of people give away their own children!!" My negative response subsided though it did not disappear as we obtained more information about the couple and the situation. The couple was from one of the Polynesian Islands close to the north of Australia and they told us that this happened in their extended family quite often. There was nothing extraordinary about it. They did not understand our response. Their view was that they were simply helping out their brother and his wife by gifting their son. Why should they miss out from the joy of having a child?
After this experience I came across other people from the Maori culture in New Zealand living in Australia. They too, were the product of similar surrogacy arrangements and they appeared not to have any problems about it. In fact they seemed quite balanced and stable.
This example has not been provided to support the view that a similar surrogacy arrangement would work out as happily in the same way in mainstream Australia. One cannot compare apples with apples.
Western modern societies do not have the same familial and kinship ties which cultures based on traditional customary law do. However it is illustrative of the community response in most western cultures. This response, arguably is based on ignorance and fear, has largely influenced the policy and law making in this area.
This paper will first outline a definition of surrogacy and list the various scenarios that may arise as a result of a surrogacy arrangement. It will then look at the history and development of surrogacy in the modern western world and the reasons why it has increasingly become an option for infertile couples. Most often it is an option of last resort. It will then provide an overview of the law of surrogacy around the world. The paper will then examine the major ethical dilemmas surrounding the debate. The paper will not attempt to give a definitive solution to the ethical debate surrounding surrogacy. Rather, it will explore the arguments for and against surrogacy and look at the underlying issues which require examination.
B. WHAT IS SURROGACY: A DEFINITION
Surrogacy involves an agreement made with a woman who is, or who is to become pregnant. This woman is the surrogate mother. She is the one who gestates the child. In accordance with the agreement, which can be for altruistic or commercial purposes, the woman will surrender the child born from that pregnancy permanently to another person or people who wish to become the child's parents. This couple, (for simplicity assume they are a couple as in most instances a couple is involved) are called the commissioning couple. 3 The commissioning couple is in a care-giving role with the child after its birth. They are also often called the social parents. 4 This is the generally accepted definition of surrogacy in most jurisdictions. "Full surrogacy is where the child has no genetic connection with the gestating or surrogate mother this is achieved through IVF procedures. Traditional or partial surrogacy is where the child is the genetic child of the surrogate."5
Surrogacy can take up to 10 forms6 however the most common arrangements involve:
- A woman conceiving a child through sexual intercourse with the commissioning husband. In this example the surrogate mother is the genetic and gestational mother and the commissioning father is the biological or genetic father;
- A woman being artificially inseminated with the commissioning husband's semen. In this example the surrogate mother is the genetic and gestational mother and the commissioning father is the biological or genetic father;
- A woman having an embryo transferred to her womb that has been created using the gametes of the commissioning couple. In this example the child has no genetic relationship with the surrogate mother and the commissioning couple are the biological or genetic parents;
- A woman having an embryo transferred to her womb that has been created using a donor ovum and donor sperm. In this example the child has no genetic relationship with either the surrogate mother or the commissioning parents;
- A woman having an embryo transferred to her womb that has been created using a donor ovum or donor sperm and the gamete of one of the commissioning parents. In this example the surrogate mother has no genetic relationship with the child and one of the commissioning parents has a biological or genetic connection.7
C. MODERN HISTORY AND DEVELOPMENT OF SURROGACY LAW
The first recorded surrogacy arrangement is found in the Old Testament in Genesis Chapter 16. Sarai (later to be called Sarah), wife of Abram (later to be called Abraham) was barren; today we prefer the term 'infertile'. She told her husband to sleep with Hagar her Egyptian maid. Sarai would then claim Hagar's children as her own. Hagar gave birth to Abraham's son Ishmael. Hagar was then thrown out into the desert with her son to fend for herself because of the tensions between her and Sarah. It has been suggested that the "subsequent stresses in the relationship between Hagar and Sarai illustrate some of the tensions and ambivalence of the surrogacy arrangement".8 Interestingly, Israel is one of the most progressive nations with respect to surrogacy law. "They are the only country to have a comprehensive surrogacy regulatory scheme, although this applies to full surrogacy (through IVF) only".9 The law was passed in 1996. Israel is also one of the few countries that allow commercial surrogacy arrangements 10. Some States in the United States of America also allow commercial surrogacy arrangements. California is perhaps the most progressive State in this regard.
Surrogacy law in the western world has developed significantly over the past three decades. The development of IVF has meant that the genetic and gestational aspects of the reproduction process could be separated. This breakthrough in technology gave opportunity to the increase in surrogacy arrangements. On the positive side it has allowed some couples to have their own children who are genetically related to them. This would have been impossible before, because the woman (the commissioning mother) could not carry a child to term. It has however introduced ethical dilemmas that have in some cases "polarised the community"11 This will be discussed later on in the paper. Other factors that have contributed to its emergence is the growth in infertility,12 and the gradual decline in the number of children available for adoption over the past 30 years.13 This has meant that couples that would normally seek to adopt a child cannot. This has created a need for alternatives to be found such as surrogacy. For many couples that do resort to surrogacy it is often the final option in a long painful battle to bear a child. 14
Until the 1980s surrogacy, both commercial and altruistic, was being conducted privately without any real intervention from the government. People found it a more attractive option when it was discovered that a surrogate could get pregnant through self - insemination. This alleviated the need to go to a clinic. However it was the notoriety of two cases that bought this controversial issue into the public arena and then western governments' public agenda for reform.
The first was the Baby Cotton case in the United Kingdom. Ms Cotton became pregnant by artificial insemination with the commissioning father's semen. The commissioning father lived in the United States. Ms Cotton came into contact with the couple through an agency. The couple paid her a fee for carrying the child to term. She gave the child up in hospital and literally walked out leaving her new born baby behind. The commissioning couple in the United States made a wardship application to the High Court in the United Kingdom. The High Court gave the commissioning couple the care and control of child on the basis that they would be the best persons to care for the child. 15 This case provoked a public outcry in the United Kingdom. The public were outraged by the large amount of money paid to Ms Cotton to carry the child. Further the contract was at all stages an arms length agreement settled through a broker. This was particularly outrageous to the public. Ms Cotton also obtained money for her story from a newspaper at the time. 16
The second case known as the Baby M case occurred in the United States in 1986.17 A surrogate mother gave birth to a child conceived using the commissioning father's sperm and her own egg. She then later changed her mind and wished to keep the child. The baby was handed over to the commissioning couple three days after the birth but was later given back to the surrogate mother. She then disappeared with the baby. The commissioning couple filed proceedings in court to enforce the surrogacy contract and hired a private detective to find the surrogate mother and the baby. The court at first instance upheld the agreement as valid. The court stated that the contract would be enforceable provided it was in the best interests of the child. However the appellate court in New Jersey ruled the contract as void and unenforceable as it conflicted with State public policy. The appellate court still gave custody of the child to the commissioning parents on the basis that it was in the best interests of the child. The surrogate mother was granted visitation rights as the child's natural mother. 18
Both these cases sparked fierce debate in most jurisdictions. These cases provided the impetus for the first surrogacy laws to be introduced in legislation. Prior to this, surrogacy contracts were unregulated and were dealt with by way of other laws pertaining to children such as adoption laws and the status of children acts in the various jurisdictions.
D. A GLOBAL VIEW OF SURROGACY LAW 19
Western governments have responded in four major ways since the Baby M and Baby Cotton cases. The most extreme response is absolute prohibition of all surrogacy arrangements and in some jurisdictions civil and criminal penalties apply for those entering into these arrangements. The arrangements are banned irrespective of whether they are for altruistic or commercial purposes. The second response, that is the most common, is a partial acceptance of surrogacy where altruistic surrogacy is permissible but commercial surrogacy is banned. The third group has chosen not to make laws specifically governing surrogacy. The final group has permitted all surrogacy arrangements including commercial surrogacy contracts.
Prohibition
In a few American States such as Arizona, New Jersey and Michigan the law prohibits all forms of surrogacy. In Europe, Germany, Sweden, Norway and Italy prohibit all forms of surrogacy. In Australia, where the law is far from uniform, Queensland prohibits all forms of surrogacy. "In these jurisdictions surrogacy has been banned by imposing civil and criminal penalties on those who enter into these agreements and those who facilitate them".20
Partial Acceptance - Altruistic Surrogacy Permitted Commercial Surrogacy Banned
In other parts of the United States such as Kentucky, Louisiana, Nebraska, and Washington only commercial surrogacy is prohibited. The contracts are unenforceable and if a dispute arises, the terms of the contract cannot be enforced. Most of the remainder of the United States have not passed specific laws regarding surrogacy.21 In the rest of Europe, France, Greece, Denmark and the Netherlands have prohibited commercial surrogacy. Other States in Australia, Victoria, the Australian Capital Territory, Tasmania and South Australia prohibit commercial surrogacy and permit altruistic surrogacy.22 The position is the same in the United Kingdom. Although, the United Kingdom Act, Surrogacy Arrangements Act (1985) allows the surrogate to receive reimbursement for genuine medical and pregnancy related expenses.23
Inaction
As stated above many of the remainder of the States in the United States have no specific legislation dealing with surrogacy. In Australia, New South Wales, Western Australia and the Northern Territory have not specifically regulated in this area. In South Africa also there is no cohesive surrogacy regulation.24 Therefore there are no specific prohibitions against both forms of surrogacy contract. However, courts in the various jurisdictions during adoption proceedings have stated that they would not like to be seen to be giving approval to surrogacy arrangements by granting adoption orders to commissioning parents. 25 In Finland and Ireland surrogacy takes place without legislative provision. In New Zealand at the moment there is also no specific legislation dealing with surrogacy. However there is a pending bill in parliament that, if passed, will take New Zealand into the partial facilitation group. 26
Commercial Surrogacy Contracts are Legal
As mentioned previously, commercial surrogacy contracts have been allowed in Israel and California. Israel only allows full surrogacy arrangements. Their legislation provides tight controls to safeguard against the possible abuses that may occur in surrogacy arrangements. The parties must obtain prior approval from a statutory authority. In California the law is governed by case law.
Reallocation of Parenthood Rights after the Birth of the Child
The law dealing with the reallocation of parenthood rights in each jurisdiction is complex and far from uniform. Many commissioning parents do not go through with adoption proceedings and therefore their rights as parents are uncertain. It also creates problems for the child when for example a birth certificate is required for enrolment into school or a passport is required for the child.27 It is only the United Kingdom, Israel, Greece and the States of Florida, New Hampshire and Virginia in the United States that have enacted specific legislation in this area.28 In 2002 Greece introduced unique legislation that allocate full parental rights to the couple who desired the child. No other country has gone this far in denying the parental rights of the surrogate mother. Greece however does not permit surrogates to be genetically related to the child.
Many of the other countries mentioned have not enacted legislation to deal with this issue. It is beyond the scope of this paper to discuss this area in great detail, except to state that the area is in great need of reform. Some jurisdictions such as Victoria in Australia and New Zealand have already recognised this and are currently seeking reform of the law.29
E. THE ETHICAL DEBATE
Surrogacy came into the public eye because of the Baby Cotton and Baby M cases in the 1980s. The initial outrage was that commercial surrogacy was equivalent to 'baby buying' or trading in babies. This was a repugnant thought by many. 30 It was not clear, initially, whether the repugnancy was against altruistic as well as commercial surrogacy. As outlined above some jurisdictions ban all forms of surrogacy. Even though many jurisdictions have not specifically legislated against altruistic surrogacy, it still does attract controversy and concern.
The second concern was that surrogacy exploits women and uses them as mere incubators. There is particular concern, at least with respect to commercial surrogacy, that it exploits women of a lower socio-economic class. Analogies have been drawn with prostitution. This view was supported by many feminist writers.31 Another common view, which was arguably based on ignorance and fear, was that a high paying professional woman would pay a poorer woman to have a baby so she could circumvent the inconvenience of pregnancy. There is no evidence of this. 32 Surrogacy is often used as a last resort by women who would dearly love to be able to carry their own child but cannot because of medical reasons.
Finally but definitely not least, the major concern surrounds the welfare of the child born from such an arrangement. The predominant concerns were not whether the child would grow up in a home that could provide material security, although this is always an initial concern. The major concerns were the possible psychological effects on the child, especially if it knew that it was born out of a surrogacy arrangement. Specific concerns were whether the child would suffer from abandonment issues amongst other issues. This has been discussed in Australian case law.33
Surrogacy and our idea of family in modern western societies - Is it a moral issue?
The ethical debate is a Pandora's box. It is best to open it by revisiting the beginning of this paper; "What type of person gives up their own child?" My initial response was based on a deeply held belief about families and how they are formed. My mother carried me to term and would never dream of giving me away. Giving a child away was only acceptable in the context of adoption. In those circumstances traditionally, the view was that women gave up their children reluctantly because the pregnancy was out of wedlock and they could not support a child alone. By contrast, in surrogacy arrangements the mother who carries the child has conceived the child knowing she will give it away at the end of the pregnancy. This is outrageous to many women who have had children.34 They speak of the intimate union they form with the unborn child during pregnancy. This underpins deeply held values about a woman's maternal instinct. A woman who gives a child away after giving birth, irrespective of whether the child is genetically related to her, is challenging this view about women and their maternal instincts. It is this deeply held value and moral which surrogacy offends. Many would say "a good mother would never give away the child she bore unless she was forced to". Further the fact that women such as Ms Cotton and most recently in an Australian case Krisy Prelewicz35 do this for profit is on one view intrinsically immoral. There are however women who cannot give up the child at the end of the pregnancy. This happened in the Baby M case in the United States and the Evelyn case in Australia, see note 33.
In contrast to this point of view there are other cultures that have a different view such as the Maori culture. In these cultures people may gift their children to an infertile member of their extended family.36 However "there are significant differences. The child will always remain within the wider family structure of the birth mother." In surrogacy arrangements in modern western societies "there is often no familial connection between the surrogate mother and the commissioning parents"37, although there have been instances where a family bears a child for another family member. The famous case in Australia was the Kirkman case38 where Linda Kirkman agreed to gestate the child, Alice for her sister Maggie Kirkman and her husband. After this case, the law changed in Victoria and made surrogacy illegal. In Victoria now altruistic surrogacy is allowed under very restricted circumstances.39
There are women in our society who can give the child away after giving birth. Often they have already had children of their own. They express a different point of view. These women are often motivated by altruistic reasons even though they may receive some financial reward in some instances. They speak of their joy in being able to give a child to an infertile couple who have often been struggling for years to have a child. These women speak of high levels of satisfaction associated with giving an infertile couple the ultimate gift of a child 40. Studies in the United Kingdom and the United States affirm this experience.41
The surrogate mother and exploitation
It is argued that a woman's reproductive capacity should not be used as an instrument for another person's purposes. In commercial surrogacy the surrogate becomes the social mother's instrument of having a child for a fee, in altruistic surrogacy she is the instrument without the fee. This is another reason why surrogacy has been judged as intrinsically immoral.42 We do not give absolute freedom in our society. A woman should not be given the freedom to sell her reproductive capacity for profit. Some go so far as to say that a woman should not have the freedom to use her body for this purpose even if it is for altruistic reasons. This view is extreme and not upheld by most jurisdictions, except for those that prohibit surrogacy absolutely.
It is feared that women of a lower socio-economic class will be exploited and become surrogates without fully understanding the consequences upon them, especially, in commercial surrogacy contracts. The studies in the United Kingdom and the United States show that generally surrogates do come from a lower socio-economic class than the commissioning couple, see note 41. The experiences mentioned in the previous paragraph of surrogate mothers contradict the view that they are being exploited. If there are regulatory controls in place that educate and inform a possible surrogate, the potential for abuse is minimized in this context. Further, there have been "cautions against assuming surrogacy arrangements are exploitative" and that the concept of exploitation is a subjective one in many instances.43 This is illustrated by the experiences of surrogate mothers in the studies noted.
Commercial Surrogacy
The strongest objections have been by far against commercial surrogacy agreements. It is contracts for reward that lead to the commodification of child bearing. The extreme view is that it is baby selling. This is why most jurisdictions in the western world allow altruistic surrogacy and ban commercial surrogacy. On one view this is entirely correct, women are having a child for a fee. They are selling a service, much like a prostitute sells a service. This objection in itself is not sufficient to ban all forms of payment. In the United Kingdom a surrogate is entitled to be reimbursed for her expenses. This would seem fair. However in Australian jurisdictions many States ban any form of payment. Is this not exploitation? "Others argue that surrogates perform an extremely valuable service which they should be entitled to recompense, as long as they are fully aware of the risks".44
As noted above commercial surrogacy contracts can lead to further exploitation of women of a lower socio-economic class. However this view is arguably based on ignorance. It is undeniable that potential for abuse does exist and probably does occur. However as noted this can be minimised by "ensuring the surrogate mother is counselled and made fully aware of the implications of the arrangement"45 Exploitation is not only relevant in commercial surrogacy. Exploitation can also occur in altruistic surrogacy arrangements in a different form. Emotional pressure maybe used where family members are asked to become surrogates for example. It may be also seen as exploitative that a woman is not getting paid for carrying the child. She is providing a valuable service.
There are also fears that the commissioning couple maybe exploited by the surrogate mother. The commissioning couple is often desperate to have a child if they have come to this stage. The surrogate is certainly in the bargaining position to ask for more money.
It is unlikely surrogacy will occur unless there is some form of payment. Very few people would go to the lengths of having a child for someone else, even if it is a dearly loved friend or family member, without some reimbursement at the very least. It is also likely that surrogacy for a fee is occurring even in jurisdictions where it is totally prohibited. If so, it is likely that there are no problems as they have not been discovered by the enforcement agencies.46 Also, there are no significant reports from the jurisdictions that have legalised commercial surrogacy that can guide the debate in this area. The Israeli regime maybe most desirable as it is a comprehensive regime with tight controls.
Welfare of the Child
"Little is known about children born of surrogacy and the impact it has on their personal and emotional development. Although perceptions are growing that it may not be harmful".47 An English report has shown that the risk of long term psychological harm is low if open acknowledgment is made at an early stage.48 The concerns are that the children would feel that they were bought by their parents at least in commercial surrogacy situations. Also there maybe issues of abandonment arising from the fact their birth mother gave them away. This was raised in the Australian case of Re Evelyn.49 There are also concerns in relation to the children's need to know their genetic origin and to know people they are genetically related to such as half siblings. These are the same issues that arise for children who have been adopted.
It is difficult to assess these concerns without available data regarding the long term impact upon children born from surrogacy arrangements. However some of these concerns are not isolated to surrogacy arrangements, in particular the issue regarding the child's origin, and the confusion and loss that he/she may feel later in life. This is an issue for a child born of a donor sperm or donor egg and for adopted children. Therefore, these concerns in themselves are not sufficient justification to outlaw surrogacy.
Others however argue that children born out of surrogacy are unique in that they know they were dearly wanted by their parents. This argument maybe stronger for parents who have entered into commercial contracts. Many have expended life savings to have children.50
In Europe there have been reports that show parents who have had children from surrogacy arrangements exhibit high quality parenting. In particular commissioning mothers have shown greater warmth and intimacy than where the child is conceived naturally.51 This dispels the view that the surrogate mother will necessarily be a better mother than the commissioning or social mother. In contrast, in the case of Re Evelyn52 even though there is no presumption in favour of the biological parent in residence (custody) proceedings in Australia, the Judge still awarded the baby girl Evelyn to the surrogate biological mother as she was seen as being best equipped to deal with issues of identity and abandonment during adolescence.53
F. CONCLUSION
It would not be desirable to have a policy that allows for uncontrolled surrogacy. There need to be regulatory controls in place that can minimise and control possible abuses of surrogacy. This is beneficial for all the parties concerned in the debate. However, even though there are moral and ethical objections to surrogacy, these are not sufficient to outlaw it altogether as some jurisdictions have. It is likely that surrogacy arrangements are occurring in these jurisdictions in an underground capacity. Open regulation in this area will help ensure that the parties' rights are not abused. Many jurisdictions ban commercial surrogacy. They have deep moral and ethical objections as it involves the commodification of a woman's reproductive capacity. This is seen as morally repugnant. There is no answer to the ethical debate surrounding commercial surrogacy. It largely depends on the values people place on individual human freedom, in particular, the freedom a woman has to use her body for any purpose she chooses. One thing is certain - the need for alternatives for infertile couples is increasing in modern western societies. This will only make surrogacy more attractive to those who see it as the only way they can have children.
NOTES
* Barrister- at- Law, Victoria; Associate Lecturer, Faculty of Law, Deakin University.
1 RA Charo "Surrogacy: Why all the Fuss" in Law Reform and Human Reproduction ed McLean (Aldershot, England: Dartmouth Publishing Company,1992) p 232
2 Definitions taken from New Zealand Law Commission, "New Issues in Legal Parenthood", A Discussion Paper; Preliminary Paper 54, March 2004, published by the New Zealand Law Commission p xvi & xvii.
3 The definition is taken from The Victorian Law Reform Commission, "Assisted Reproduction & Adoption: Should the Current Eligibility Criteria in Victoria be Changed?" Consultation Paper, published 20 January 2004 by the Victorian Law Reform Commission, Victoria Australia p107.
4 The New Zealand Law Commission, "New Issues in Legal Parenthood", A Discussion Paper; Preliminary Paper 54, March 2004, published by the New Zealand Law Commission, Wellington New Zealand p36.
5 Ibid at p36; Also see P. Janu, "Surrogacy Arrangements in Australia: Analysis of the Legal Framework" (1995) 9 AJFL 200.
6 See article by A. Stuhmcke, "Surrogate Motherhood: The Legal Position in Australia, November Vol 2, 1994, Journal of Law and Medicine p116 - 124 at p117.
7 See The New Zealand Law Commission, 2004, op cit, p36
8 Lorraine M Harding, "The Debate on Surrogate Motherhood: The current Situation, Some Arguments and Issues; Questions Facing Law and Policy". January 1987, Journal of Social Welfare Law, p37-63 at p40.
9 New Zealand Law Commission, 2004, op cit p51. Also see Elly Temen " Knowing the Surrogate Body in Israel" in R Cook, S Day Sclater and F Kaganas (eds), "Surrogate Motherhood; International Perspectives (Hart Publishing, Portland (Oregon), 2003), p158, 260-279
10 See Judy Siegel, "First Local Surrogate Birth", Article published in "The Jerusalem Post" Internet Edition, February 20 1998.
11 See Stuhmcke, n 6 op cit, p124.
12 Ibid p118 , taken from M Bracher and G Santow, "Fertility Desires and Fertility Outcomes" (1991) 8 Journal of Australian Population Association 1 at 33.
13 Ibid p118 , taken from D R C Chalmers, "No Primrose Path" (1989) 7 Medicine and the Law 1 at 2. In Australia the number of children available for adoption dropped from 9,798 in 1971-1972 to 3,072 in 1982-83. This is due largely to single-parent families becoming acceptable and unmarried mothers not placing their children up for adoption. See also the discussion by L Waller, "Borne for Another" (1984) 10 Monash University Law Review 113.
14 See for a recent example in a much publicised case in Australia the story of the Banfields' struggle to have a child. Miranda Wood, "Twins, give new meaning to 'Made in Australia'", "The Age", Newspaper, Melbourne Victoria. May 2, 2004. Also see New Zealand Law Commission, 2004, op cit pg 4.48 p47.
15 K. Cotton and D Winn, Baby Cotton. For Love and Money (1985). Family Law (1985) Vol. 15, p191. Re C (A Minor) (Ward: Surrogacy) Family Division, Latey J. January 8,11,14, 1985.
16 See Harding n 8 page 39. Also P Toynbee, (1985) " How will Baby Cotton feel when she learned her unknown mother did not give her up sadly, out of necessity, but gladly for money?" The Guardian July 1, 1985
17 In Re Baby M 537 A.2D 1227, 109NJ 396 (NJ 2/3/98) Decision of the New Jersey Supreme Court.
18 New Zealand Law Commission, 2004, op cit p38.
19 Most of the information regarding the global state of the law has been obtained from the New Zealand Law Commission, Discussion Paper No. 54, (2004), op cit, p50-52.
20 Ibid p50
21 See The American Surrogacy Centre, Inc. / www.surrogacy.com
22 Penne Watson Janu, "Surrogacy Arrangements in Australia: Analysis of the Legal Framework" , (1995) 9 AJFL 200.
23 Often these expenses have been generously interpreted so that they are not seen as payment for the reproductive services of the surrogate mother. It appears the line between altruistic and commercial surrogacy in the United Kingdom is often blurred. M. Brazier, A Campbell and S Golombeck, Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation,- Report of the Review Team, London, October 1998, [The Brazier Report]
24 See "Surrogate Mothers and the Law" , 1/7/02, Medico - Legal Articles, taken from www.hasa.co.za; Also see the South African Law Reform Commission website at www.law.wits.ac.za/salc/salc.html
25 See Re A and B (2000) 26 Fam LR 317; [2000] NSWSC 640 Bryson J
26 The Human Assisted Reproductive Technology Bill, see New Zealand Law Commission, (2004) op cit (p39, 50
27 New Zealand Law Commission, (2004) op cit p44-47 and 51-54.
28 Ibid p51
29 See The Victorian Law Reform Commission, "Assisted Reproduction & Adoption: Should the Current Eligibility Criteria in Victoria be Changed?" Consultation Paper, published 20 January 2004 by the Victorian Law Reform Commission, Victoria Australia ; The New Zealand Law Commission, "New Issues in Legal Parenthood", A Discussion Paper; Preliminary Paper 54, March 2004, published by the New Zealand Law Commission, Wellington New Zealand.
30 Scott B Rae, "The Ethics of Commercial Surrogate Motherhood, Brave New Families, 1994, Praeger Publishers, Westport Connecticut.
31 " In Response to a Freeman: surrogate motherhood and the feminist perspective" By David Salmon, Butterworths Family Law Journal, Vol 1, December 1995, Part 12. Also see Dr Robyn Rowland "Surrogacy a Feminist Perspective on Ethics, In M Meggitt, 'Surrogacy in whose interest", Proceedings of the National Conference on Surrogacy in Melbourne 1991, Published by Mission of St James & St John 1991, Melbourne
32 See New Zealand Law Commission, (2004) op cit pg4.51 p47.
33M Otlowski, "Re Evelyn-Reflections on Australia's first litigated Surrogacy case" in Medical Law Review, 7 , Spring 1999, p38-57 at p41. The article summarises the case, Jordan J decided to give custody, now called residence, of the child to the surrogate mother because of possible abandonment issues she would suffer in the future, this was upheld on appeal. Re Evelyn (1998) 23 Family Law Reports 53 (Nicholson CJ, Ellis and Lindenmayer JJ); Also see Re A and B (2000) 26 Fam LR 317; [2000] NSWSC 640 Bryson J. Was an adoption application by the commissioning parents.
34 This is an opinion voiced by all of the women who I know that have children.
35 Miranda Wood , "Twins, give new meaning to 'Made in Australia'", The Age Newspaper, Victoria. May 2, 2004. The Banfields' struggle to have a child.
36 See New Zealand Law Commission, (2004) op cit p49-50.
37 Ibid p49 pg 4.62
38 M Kirkman and L Kirkman, "My sister's child-Maggie and Linda Kirkman; Their own story"(Penguin Books Ringwood 1988)
39 Victorian Law Reform Commission Paper, op cit. note 29; Chapter 6.
40 See New Zealand Law Commission, (2004) op cit p48, pg 4.53-4.56
41 BP Aigen Motivations of Surrogate Mothers: Parenthood altruism and self actualisation (a three year study) (Sponsored and published by the American Surrogacy Centre, 1996); E Blyth "I wanted to be interesting I wanted to say I've done something interesting in my life: Interviews with surrogate mothers in Britain" (1994) 12 Journal of Reproductive and Infant Psychology 189-98.
42 See M. Charlesworth, "Reasons for and against Surrogate Motherhood" at p57 in M Meggitt, 'Surrogacy in whose interest", Proceedings of the National Conference on Surrogacy in Melbourne 1991, Published by Mission of St James & St John 1991, Melbourne
43New Zealand Law Commission, "Adoption and Its alternatives; A different approach and a new framework" Report 65, September 2000 Wellington New Zealand, p194 pg 5.32; View taken from Craig Rotherham, "Surrogate Motherhood in New Zealand: A survey of existing law and an examination of options for reform" (1991) 7 Otago Law Review 426, 431.
44 Ibid p196-197
45 Ibid p195
46 See New Zealand Law Commission, (2004) op cit p47 pg4.48
47 Ibid p48
48 British Medical Association, "Changing Conceptions of motherhood: A report on Surrogacy" London, 1995
49 see n 33
50 see Eric Blyth and Claire Potter "Paying for it? Surrogacy, Market Forces, Assisted Conception" in R Cook, S Day Sclater and F Kaganas (eds), "Surrogate Motherhood; International Perspectives (Hart Publishing, Portland (Oregon), 2003)
51 European Society for Human Reproduction and Embryology, ; "World's first study on surrogacy reveals high quality parenting and no problems", 1 July 2002
52 Otlowski see n 33 at page 43 of article
53 Ibid n 33 at page 41 of article
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