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One of the main purposes of any legal system is to protect the most vulnerable, in this case, its the family members. To an extent, legal and non-legal methods have been largely ineffective when achieving justice for family members in relation to surrogacy and birth technologies.
Surrogacy has been a prominent issue in regard to achieving justice for family members. Surrogacy is the act of a woman giving birth to a baby on behalf of another person as known as commissioning parents (intended parents). Surrogacy is split up into two categories commercial and altruistic. First, commercial surrogacy is an agreement made to the woman giving birth (surrogate) and the transfer of custody and parental responsibility for the child to another person by adoption or agreement with financial gain. Secondly, altruistic surrogacy, by contrast, is an agreement in which the surrogate receives no financial payment for the pregnancy, only out of pocket expenses involve a relation to hospital and birthing costs. Within Australia all states and territories have their own laws in regard to surrogacy, many have prohibited both altruistic and commercial surrogacy. In Western Australia, altruistic surrogacy was illegal in relation if the commissioning parents were either single men or gay couples under The surrogacy act 2008 (WA). A prominent issue in New South Wales regarding surrogacy is the legal status of the mother Before 2010, even if the birth mother used both donor ova and sperm or a donated embryo to achieve the pregnancy, she was still considered the legal and natural mother of the child under common law, this is explored in The status of children act 1996 (NSW), The family law act 1975 (cth) and The marriage act 1961 (cth). This raise’s many issues as to who the legal parents are. This can cause a variety of problems for the commissioning parents, as they cannot access governmental schemes like Medicare and eventually enrolling the child in school. In R v Michael 2009 the court ruled that the baby be given to the birth mother because the court decided that an intended mother did not exist. The impact of this case has been a number of reforms, one of the important ones is The surrogacy act 2010 which makes reference and included the rights of the intended parents. The act outlines that intended parents are given 30 days to apply for a parentage order after the birth and if granted by the courts it will make them legal parents of the child even if they are not biologically related. The reform of the surrogacy act 2010 has brought in new rights in regard to intended parents as previously the act before did not consider the intended parents even if their sperm/egg were being used. However, this reform does not achieve justice for the surrogate mother as it does not consider any rights that the surrogate goes through.
Subsequently, there are many issues regarding international commercial surrogacy, such as the rights the surrogate mother has and lack of regulation countries have on foreign commercial surrogacy. These issues have been made apparent throughout multiple media outlets gaining widespread attention as well as non-governmental organisations views arising in society. The Sydney Morning Herald published an article “Indias baby farms” on the 6th of January 2008, this article goes on to outline problems surrogate mothers face within foreign commercial surrogacy. “critics say the couples are exploiting poor women in India – a country with an alarmingly high maternal death rate.” This article is bringing public attention to the harmful effects the international commercial surrogacy has on surrogate mothers. Right Now a non-profit media organisation focusing on human rights published an article “where do surrogate babies come from? Surrogacy as a human rights violation” on February 27th 2019 by Dr Renate Klein. Dr Klein refers to surrogacy as a “clear human rights violation” she refers to how surrogacy “violates a number of UN conventions”. Klein, for instance, refers to “surrogacy can be liked to slavery”. She then later supports her argument with “article 1 of the united nation’s slavery convention defines the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. An example of when there was a lack of regulation in regards to commercial surrogacy is the “baby gammy” story. The Conversation published an article on the 5th of August 2014 titled “baby gammy case reveals murky side of commercial surrogacy”. This article highlights “how complex and fraught commercial surrogacy arrangements can be” with reference to the “baby gammy” story it outlines the harms foreign surrogacy has on surrogate mothers and families. “Baby Grammys” parents (Australian) commissioned a Thai woman to have one baby on their behalf however she ended up falling pregnant with twins and one suffering down syndrome. The commissioning parents told the surrogate mother to have an abortion but due to religious grounds, she did not. The commissioning parents then left Thailand with just one twin and the surrogate mother was left with baby gammy (down syndrome baby). This case brings up the lack of regulation Australia has surrounding international surrogacy. Media outlets and non-governmental organisations have been effective in showing the lack of regulation and the rights the surrogate mother has.
Conversely, birth technologies are seen to be a contemporary issue with the first successful case in 1978. There is a range of different procedures that are classified as birth technologies. The most noteworthy ones are artificial insemination (IUI), In vitro fertilisation (IVF) and genetic manipulation. Along with these procures come multiple problems deriving from morals and ethical use of these new technologies. The law put into place to regulate the ethical and social aspects of assisted reproductive technology is the Assisted reproductive technology act 2007. One of the main arguments regarding the use of artificial insemination is the rights of the sperm donor and if he has any parental rights. Neither the federal nor state laws in Australia are clear-cut on whether sperm donors are automatically seen as parents and the assisted reproductive technology act is seen as inconsistent with the changing times as this act was enacted in 2007 and the first artificially insemination baby “Candice Reed” in the 1980s. This act also did not take into consideration the rights of the sperm donor and their right to privacy, this act abolished the choice to have an anonymous sperm donation. Within section 14 of Status of children act 1996 (NSW) a sperm donor does not have any parental rights and is not presumed the father. This act is shown as insufficient in 2015 when a sperm donor fight for paternity was put to the test. In the Sydney Morning Herald’s article “what makes a father” a sperm donor given the name “Robert Masson” by the family court for privacy reasons appealed his case to the High Court. Arguing that even though he donated his sperm he is present in his “children’s” life and his “children” deserved a meaningful relationship with him. “the heart of the issue was whether Masson was a legal parent” due to the laws regarding the use of assisted reproductive technologies aren’t clear-cut in regard to the rights the sperm donor has. After five years and countless appeals, the high court ruled Masson as the father, therefore, if Australian federal and state laws took the right of the sperm donor into consideration there would not be issues like Masson’s case would be spared.
Nonetheless, there are many issues surrounding the right of the sperm donor. Such as there right to remain anonymous. The assisted reproductive technology act 2007 has taken this right away from them. This can be seen in an article published by the Sydney morning herald, “allow sperm donors the right to maintain their past anonymity”. This focuses on bringing alight the violation of privacy NSW law has given to sperm donors. A majority of sperm donors were given the surety they would remain private and “There is a strong legal and moral responsibility on law-abiding, civil society to protect sperm donor privacy”. Another article bringing public attention is “sperm donors face a loss of privacy” goes through and states that anonymity laws regarding the privacy of sperm donors have been “relaxed”. “Doctors and support groups are concerned that the relaxation of confidential rules could discourage potential donors.”However, due to the ACT, this right to privacy has been erased. Non-legal measures like the media have been effective in bringing this topic to the public attention however this issue is not getting solved has not been taken into consideration within federal and state laws.
In summary, legal and non-legal measures have been largely ineffective in regards to achieving justice outcomes for surrogacy and birth technologies.
Thus surrogacy legal measures are ineffective as they do not take into account the rights of the woman carrying the child and there is a clear lack of regulation with international surrogacy. These issues are made apparent through the effectiveness of the non-legal measures the media taking into account of cases like the ‘Baby gammy” case and displaying them in the public eye. In regards to birth technologies, legal responses do not take into consideration the right of privacy for the sperm donor due to the Assisted Reproductive Technology Act erasing anonymity. However non-legal measures such as the media have been somewhat effective in bringing awareness to the public. The downside to this is that the media is not enforceable.
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