Surrogacy - a risky business?

International surrogacy has been given extensive media coverage in the past week, largely in response to the case involving the Thai-born baby, known as "Gammy". Gammy is reportedly the biological child of a Perth couple, born to a 21 year old Thai mother through a commerical surrogacy arrangement brokered by a Thai surrogacy agency. Gammy has Down's Syndrome, and congenital heart defects. There are many conflicting news reports as to what should now happen to baby Gammy.

It is alleged by the birth mother that the child's parents travelled to Thailand to collect Gammy's healthy twin sister, but left the baby boy in Thailand. The parents recently appeared on commercial television and provided a lengthy interview where they told their side of the story, which differed from the surrogate mother's.  The Thai military junta has now imposed a severe crackdown on the surrogacy industry in Thailand, and is considering legislative changes to deal with the issues arising from international surrogacy.

This very sad story highlights some of the potential difficulties that could arise for couples who enter into overseas surrogacy arrangements. Surrogacy laws around Australia differ markedly, because the States and Territories, not the Commonwealth, have responsibility to regulate surrogacy. Some States permit international surrogacy, whilst others do not.

In New South Wales, commercial surrogacy was banned after the Surrogacy Act (NSW) came into effect in 2010. Altruistic surrogacy - that is, surrogacy without payment - is however permitted. Intended parents can enter into a surrogacy arrangement with the birth mother which sets out the terms of the agreement between them. The existence of a surrogacy agreement entered into before the surrogate mother becomes pregnant allows the intended parents, not the birth mother, to be recorded, on application to the NSW Supreme Court, as the parents on the subject child's birth certificate. Surrogate mothers can be paid for their "reasonable expenses", but under the NSW legislation, do not receive any other payment. Given the risks and discomforts associated with pregnancy, it is unsurprising relatively few babies are born via altruistic surrogacy.

For children born to parents living in NSW as a result of overseas surrogacy agreements, the situation is far more complex. Not only may the child born via the surrogacy not be recognised under the laws of NSW as the child of the intended (or biological) parents, it may be denied an entry visa to Australia under Commonwealth law until its status is resolved.

There are no easy answers to the issues arising in relation to surrogacy, either domestic, or international, though there is plenty of scope for uniform national regulation, and international agreement on what is currently a minefield for families taking the difficult decision, for whatever reason, to enter into surrogacy agreements.