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"Buying a Baby" - Are Commercial Surrogacy Arrangements Wrong?
10 February 2014
Legally, the short answer to this question is "yes". The Surrogacy Act 2010 (NSW) makes it an offense for a person ordinarily resident or domiciled in New South Wales to enter into a commercial surrogacy arrangement, regardless of where it takes place.
From a social and ethical perspective however, the issue is significantly more divisive. Many prospective parents, for whom commercial surrogacy is their last resort to start their family, are not deterred by the potential criminal sanctions and are turning to overseas surrogacy clinics who offer them the opportunity to have a child.
This then places the Family Court in a difficult legal and ethical situation, as they are often asked to make parenting orders in respect of a child born via an international commercial surrogacy agreement, in the face of scant evidence as to the legitimacy of the birth mother's consent to the surrogacy agreement, and in conflict with the Court's public policy obligation to discourage commercial surrogacy arrangements.
These difficulties were exemplified in the 2013 case of Mason & Mason and Anor  FamCA 424, where the birth mother, an illiterate woman from India who spoke only Hindi, received the equivalent of approximately $5,000 AUD in exchange for acting as a gestational surrogate for the Applicant and first Respondent (the "prospective parents") to the proceedings. The surrogacy agreement was written in English, and attested by the woman with her thumb print in place of a signature. There was no evidence that the agreement had been read out to her in her native tongue, let alone whether she had received legal advice in relation to the agreement. This woman also signed an Affidavit in the proceedings purporting to consent to the making of the parenting orders sought by the Applicant and first Respondent, however again this was signed with a thumb print and with no evidence that the document had been translated into Hindi. Understandably, this caused Her HOnour Justice Ryan significant disquiet, although she ultimately made Orders conferring parental responsibility on the prospective parents.
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