This year the international spotlight turned with full-force on cross-border commercial surrogacy. The reality of children being born this way and the potentially devastating consequences of babies being abandoned and stateless shocked our collective consciousness.
Such was the case of Baby Gammy, born with Down syndrome and left in Thailand with his surrogate mother by commissioning parents David and Wendy Farnell. His story made the Australian public confront the often-disturbing reality of the international commercial surrogacy industry.
This industry provides on-demand, made-to-order children, allowing commissioning clients to circumvent the often prohibitive laws on commercial surrogacy in their home countries. It is a high-risk, high-stakes transaction for all involved.
Through Baby Gammy and more recently, the situation of a twin-child left in India by Australian commissioning parents (which senior Australian judges have said may amount to child-trafficking), we have witnessed the heightened vulnerability of children born this way.
A problematic practice
When I began working on international surrogacy issues in 2009, there was little public awareness about people from Australasia having children in places such as India and Thailand through surrogate mothers. The fact that such children were sometimes conceived using the eggs or sperm from third parties in other countries was even less known.
Fast-forward to 2014, and times have somewhat changed. Far less explanation is necessary about what international surrogacy is and what it entails. But reactions still range from the morally outraged, to a permissive “why not?” attitude.
Yet despite more community understanding, ignorance surrounding the ethical, legal, and human rights challenges triggered by the practice persists. And this gap means positive action to protect children in international commercial surrogacy in a comprehensive and systematic manner is seriously lacking.
The United Nations Convention on the Rights of the Child states all children have rights to nationality, birth registration, preservation of their identity, to be cared for in a family environment, know their parents, not be discriminated against and not be sold or trafficked. Children with disabilities have additional particular rights.
But children born through international commercial surrogacy are routinely at risk of having these rights violated. Indeed, many children born this way have ended up stateless and stranded in their birth country (for example, Baby Manji, Baby Samuel Ghilain, and the Balaz and Volden twins).
Some have been left without legal status and legally recognised parents (as in the Mennesson and Labassee cases, recently adjudicated by the European Court of Human Rights), or abandoned, devoid of a family environment.
The vast majority of children born through international commercial surrogacy face difficulties in preserving aspects of their identity due to the involvement of anonymous genetic donor parents, surrogate mothers, and the fact they’re born with the intention of being supplanted into another country and culture.
Indeed, international commercial surrogacy is arguably a market in which children are bought and sold; where they are commodities at risk of trafficking. This raises questions about whether this practice can ever be consistent with our internationally agreed ban on the sale of children.
The right focus
Despite these problems, the practice shows no sign of waning. In India alone, although reliable data is lacking, the surrogacy industry is reportedly worth between US$450 million to US$2.3 billion. And it continues to grow. People from Australia and other developed countries drive demand, despite the many cautionary tales of what can and, sometimes does, go wrong.
We must agree, at national, regional, and global levels that children and protection of their rights must be at the heart of any approach dealing with international commercial surrogacy. A starting point for achieving this is the protection framework provided by the UN Convention on the Rights of the Child.
That framework should inform the development of national legislation and policy regulating international commercial surrogacy (immediate, short-term goal), as well as an international regulatory framework (long-term goal).
What’s more, national and international efforts must make human rights protection their core focus. Both better national legislation and international agreement is urgently needed to deal with currently conflicting national laws and protection gaps jeopardising the child’s rights.
Placing the central focus on children does not mean the rights and interests of other people involved in international surrogacy are not at risk. They are, and they require protection too. The human rights of women acting as surrogates are particularly important, given they may not – in developing countries at least – become surrogates of their own free will. And they may be open to exploitation, including human trafficking.
We must act now to prevent international commercial surrogacy from developing further as an international human rights problem affecting a new generation of children and those who bring them into the world.
Work on the legal, ethical, cultural, and health issues raised by international commercial surrogacy is necessary and much needed. But the human rights issues it raises remain the most pressing. In particular, we must focus on the child, born into a situation of significant human rights risk through no fault of their own.