are rare and resources are scant.
Commissioning parents, on the other
hand, are able to start families where
they were previously medically and
economically unable to do so. And
so, as it is widely emphasised by
reproductive tourism advocates, you
can view this system as a win-win.
But when weighing up the benefits
against interests of the children of
such arrangements, legal and ethical
dilemmas arise especially in relation to
issues of legal citizenship.
to surrogate arrangements in India,
reproductive tourism has become an
issue with parents who are currently
under contract with clinics specializing
in surrogacy arrangements. Currently
in Australia the only recognised form of
surrogacy is altruistic surrogacy. That
is surrogacy without any commercial
element. To undertake the procedure in
India, expenses including airfare total to
around $30,000, a third of the price that
it would be were it undertaken in the
U.S. But now laws have changed so
that parents need to have been married
for two years to be able to enter into a
commercial surrogacy arrangement.
Homosexual and de facto relationships
are excluded. Furthermore, surrogacy
must be legal in the country that
the parents are from. In Australia,
commercial surrogacy is outlawed
in all states and territories except for
the Northern Territory where there is
no surrogacy (or plans to introduce)
legislation. So to be considered for a
India, the parents must be married for
two years, heterosexual and from the
Northern Territory. So where does that
leave Australians who are currently
engaged in unfinished surrogacy
arrangements? It is unclear as to what
will happen with surrogate-born children
whose parents do not meet the new
requirements. The children have been
left in a type of legal limbo where they
may possibly be left stateless. It is not
known whether the children will be able
to obtain visas to leave the country
while the intended parents themselves
may face prosecution. So, where the
number of surrogate-babies born in
India to Australian parents previously
numbered in the hundreds per-annum,
this number is likely to decrease
dramatically in the coming years. But
it is doubtful whether these restrictive
laws will stop the flow of parents
seeking international solutions to their
fertility needs.
surrogacy is outlawed at the state level
but not at the federal level. In NSW,
under the Surrogacy Act 2010, residents
are committing an offence if they enter
into overseas commercial surrogacy
arrangements. The maximum penalty
is 2500 penalty units if conducted by a
corporation or 1000 penalty units and
or imprisonment for two years under
any other case. A child who is born
overseas to an Australian citizen does
not automatically obtain Australian
citizenship. However the intended
parents of a surrogate child can apply
the child. All they need to demonstrate
for citizenship is that the child is a
biological child of an Australian citizen.
Applications for Australian citizenship
are determined according to the criteria
contained in the Australian Citizenship
Act 2007. To be eligible for citizenship
by descent, a child born overseas from
a surrogate arrangement must have
had a parent who was an Australian
citizen at the time of their birth. And
then comes the complex DNA testing in
order to ensure that the child is actually
the biological child of at least one of
intended or commissioning parents.
Then you have to prove that they are
the legal parents. So if you have been
following so far, it's becoming clear
that while state law says commercial
surrogacy is illegal, federal law
systematically sets out the requirements
of obtaining citizenship for surrogate-
born children in great detail. Legal
requirements (if undergoing the process
in India) further necessitate that the
intending parents must submit evidence
that they have obtained legal advice
from a lawyer who specializes in Indian
family and or contract law to ensure
that the contract was a) consensual, b)
legally enforceable, c) whether full legal
rights are given to the intended parents
and d) all parties are still consenting to
agree to the contract after the birth of
the child.
legislation is an issue affecting
not only surrogate-born children in
India but globally. The absence of
comprehensive and compatible state
and federal laws in Australia add to
the already complex citizenship issues
faced by children born from overseas
commercial surrogate arrangements. It
has been suggested that a way in which
these issues may be avoided is through
legalizing commercial surrogacy in
Australia, a decision that has enjoyed
moderate success in some states in
the U.S. This could be a solution in
which potential parents would be able
to avoid the quickly evolving citizenship
and visa laws of other countries thereby
maintaining the best interests of the
child. So while reproductive tourism
seems like a solution to serious and
sensitive fertility issues, it should be
kept in mind that these arrangements
made overseas are often fraught with
legal and ethical complications.