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Australia grapples with surrogacy & fertility/reproductive tourism

Just a brief post this evening pointing readers across to this article, Childless couples face jail as part of international baby ban as one of many possible entry points discussing the unfolding story in Australia.

Unlike the United States, Australia has been feeling its way forward much more cautiously concerning issues of surrogacy and what has been termed “reproductive or fertility tourism,” grounded firmly in its own criminal history pertaining to childless couples and adoption.

As a result, it has recently passed a law banning travel overseas for the explicit purposes of obtaining a child born of a surrogate Mother.

But it has also passed laws bypassing adoption requirements in surrogacy cases, instead simply applying for orders pertaining to parenting, largely for pragmatic reasons in that the need for adoptions was creating various bureaucratic and logistical problems, thus taking surrogacy one step closer to a hybrid form of direct legal parentage and that much closer to erasing the role of the (surrogate) Mother in legal parlance. This “streamlining” has implications for both Mothers and the resultant children.

The impact on Queer couples has been front and center through all of this and may have been one of many factors that went into the creation of the law in the first place, again raising questions of the ways in which discrimination can creep into such.

Pulling just a few brief quotes from the article:

In a move that has outraged would-be parents – whose only option left for starting a family is to travel to countries like India or the US to pay a surrogate mother – the NSW Government has extended the ban on commercial surrogacy to arrangements made overseas.

NSW residents who go overseas to countries where commercial surrogacy is a legal and thriving industry face up to two years in jail, a $110,000 fine or both on their return.

The change is designed to deter people from dodging the local prohibition and to prevent the exploitation of poor foreign women.

Unfortunately, comments like this from the Gay Dads Alliance (whether taken in or out of context) leaves the appearance of being tone deaf to the plight of women, both abroad in countries like India where reproductive tourism reduces a number of women to practically incubator status, as well as within Australia itself, in that there are a number of very solid historical reasons finding a woman willing to consentually engage in surrogacy can be quite tricky, not the least of which being Australia’s criminal adoption history in which children were literally taken from their Mothers without consent.

Gay Dads Alliance spokesman Sam Everingham said NSW was becoming a “nanny state” with laws to protect people from irrational fears.

He said finding an altruistic surrogate in Australia was almost impossible and the amendment sent a blunt message to parents who had already used commercial surrogacy that their family was wrong and unlawful.

These fears based on Australian history and present day global reproductive exploitation are certainly not irrational, though it remains unclear whether the Gay Dads Alliance spokesman intended his comment to be applied to such or not.

As for both the industry and this particular spokesman’s concerns about parents who have already used international surrogacy services or kids who are a result of such being left with concerns about legality and “legitimacy,” they, not dissimilar to Americans who appear to have adopted children babyfarmed or even kidnapped in places like Guatemala yet “legally” sold for adoption are left to deal with the aftermath of things that were legalized, yet often not the least bit consensual for the Mothers involved nor ethical.

Rather than attempting to sweep such actual practices under the rug and pretend they do not exist, getting to the truth, and making decisions from there sooner rather than later should be policy.

All the more so if there are cases in which the mothers never consenting to losing their children and want their children back.

The article also makes mention of how some women may participate in commercial surrogacy as a matter of beliefs, and attempting to do good works as a part of working out their personal karma in addition to their need for money.

…Bangkok, where commercial surrogacy is reportedly as much about the Buddhist ideal of “making merit” – the karma that comes from doing good for another – as it is about making money.

It also brings up the complex issue of the law’s actual enforcement, and how such can be tangled through the need for self reporting and displays of intent.

Mr Lynch said if faced with a lack of evidence that an arrangement made overseas was commercial in intent, the new laws would be difficult to police.

“What’s to stop someone from saying I had sex with a woman while I was overseas?,” he said, and added it would force “genuine couples” to engage in a “victimless crime”.

While the new laws are aimed at preventing exploitative practices and at least the Australian cash feeding those portions of the fertility tourism industry as well as protecting women and their genuine consent, it will be very interesting to see how they play out in practice.

I am not familiar with Australian law, but here in the United States there are essentially two classes of those who parent, those who are biological parents and need no licensing nor approval from the state and those who are not biological parents who seek state approval for fostering, adopting, etc.

For those in that second classification their parenting of these particular children is not an inherent right, but a state granted privilege that comes as a result of at least some stab at a vetting and approval process.

One may have an inherent human right to be a parent, but one does not have an inherent human right to another’s child.

(This is why adoption industry lobbyists here in the States twist the argument around, claiming a lack of being adopted “interferes with a child’s right” to being raised in a family or having parents, when what they are really claiming is that it constitutes a form of discrimination for would-be-adopters to not be able to adopt any given child. They understand all too well that would-be-adopters do not have an inherent human right to someone else’s child. Smart marketing that, on behalf of their clients, would-be-adopters, but a co-optation of Bastard voice and genuine rights to industry purposes.)

Part of the problem that Queers, Trans and Gay men in particular face across the board is that other than kids from previous marriages or Queer women giving birth, Queer parenting is often tangled through an approval process.

This is why until fairly recently, living with a Gay male partner often meant being childless save for kids from previous marriages, helpful Lesbian or Bi friends, etc. Gay adoption, more so than Gay fostering (here in the states at least) is still legally, a relatively recent phenomenon.

Heterosexual couples dealing with fertility issues have a similar problem, they cannot reproduce on their own, and then must rely upon that second classification, whether turning to surrogacy, fostering, or adoption.

Once those who want to parent no longer fall under the first classification of being able to do so completely on their own, they then fall under the second category, under which parenting someone else’s child is simply not an inherent “right.”

The key here of course is that once you have entered the realm of someone else’s biological child, these systems should not go on autopilot. There are responsibilities and emotional components that simply are different from raising a child biologically related to you.

This becomes all the more convoluted when there is provably, an industry built upon women’s reproductive capacity and lack of consent seeking to harness that market of those who are willing to pay to become parents who fall into the second category.

Australia is attempting to deal with those realities. How it turns out remains to be seen.

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