Legal Issues Of Surrogacy: National And International Considerations

Surrogacy and the Rights of the Child

Discuss about the Boundaries of Domestic and International Surrogacy.

Surrogacy is a state whereby a woman bears a kid for another couple through mutual agreement. The woman involved in bearing the child is called surrogate mother while the other parties involved in the agreement are called commissioning parents or intended parents. Surrogacy raises numerous complexities, ever-developing and contested questions at the joint of ethics, law and public policy. It concerns the most intimate as well as deeply personal aspects involving family life. Besides, surrogacy concerns the vital public issues about protecting and promoting the best interests concerning the vulnerable people such as women, children, and minorities both nationally and internationally. Ideally, surrogacy is growing every day while globalizing the industry. The objective of this paper is to explain the fundamental legal issues regarding surrogacy both nationally and internationally. The information could be useful in assessing proposed within the state surrogacy laws.

The major consideration and the beginning point is that millions of people are infertile and desire to get children. As much as they might be able to bear or carry a child on their own, these couples wish to be parents. Such groups of people include single persons, LGBT couples as well as those suffering from disability, infertility and other health issues (Caamano, 2016). The most striking concern involves the rights of the child after birth. Such concerns could commodification of the child, risk of the kid becoming stateless and more so right to know his or ancestry. However, states should consider what the best interests of these children given birth through surrogacy, as much as their parents might have broken their laws (Whittaker, 2016).  In addition, the states should consider the interests and rights of surrogate mothers since some of them could be exploited.

Internationally, there is no mutual agreement on the ways of approaching surrogacy across the world. Surrogacy remains unregulated in some countries while in others the process is strictly regulated. However, there is growing and the common trend towards creating laws meant to address surrogacy in different ways (Mohapatra, 2016). On the other hand, some jurisdictions regulate and permit only non-commercial while prohibiting commercial surrogacy. However, there are other nations that regulate and permit all types of surrogacy including the commercial one. A number of surrogacy welcoming jurisdictions were previously or have become destination countries for foreigners. In fact, various issues have been raised concerning lack of legislative, regulatory and health standards, creating hazardous conditions as well as manipulative for children and surrogates in these places (Galloway, 2016). Notably, a number of destination states are working towards closure of their transnational surrogacy markets management.

International Surrogacy Arrangements

International surrogacy arrangements could have weighty impacts on the kid’s rights born through surrogacy. Indeed, unregulated surrogacy arrangements raise actual issues in regards to child trafficking (Gerberet and O’Byrne, 2016). However, even where some regulations are involved, legal regimes’ differences between nations can imply that relationships between the child and the parent are not recognized. As a result, such issues may impact the rights of the child such as rights to passports, citizenship, inheritance, medical treatment as well as child support. In other extreme incidences, there are high risks to the child becoming stateless (Storrow, 2011). Besides, lack of regulations in some countries in regards to assisted reproductive treatment could mean that such child cannot access information regarding his or her origin. Surrogates may too be at risks of exploitation such as trafficking. Also, there are issues on whether they can give informed and free consent to surrogacy arrangements.

Ideally, there are numerous and significant intricacies involved with international surrogacy. As a result, navigating medical and the legal systems can be challenging in some countries. This is because; in such nations, regulatory and legislative frameworks could be very weak. Also, in case the surrogacy is legal in those countries, high chances are little protection is offered to the parties participating in the arrangements. Therefore, the participants need to know they will be financially accountable for all the expenses incurred overseas. Some of the possible expenses could be the unexpected medical treatment, for instance, the neonatal care in case of premature births and other health problems (Whittaker 2010). Apart from medical and legal complexities, more risks in relation to surrogacy involve the movement of other countries. Basically, every country has embraced its own regulations and procedures in regards to immigration. How these people exit their country vary from others hence, intended parents should be aware of the procedures. Also, people need to be aware of other social risks such as trafficking and exploitation of surrogates (Twine, 2015).Children may also fail to travel to other countries because they do not have travel documentation. As a result, the participants of surrogacy should understand the consequences, before the action to avoid further difficulties whether nationally or internationally.

In Australian, surrogacy arrangements are regulated at the territory and state level. All states, as well as the Australian Capital Territory, do forbid commercial or compensated surrogacy (Whittaker, 2016). However, it allows altruistic and reimbursement concerning some of the surrogate’s expenses. In other Australian states, the ban on commercial surrogacy involves extraterritorial application. Particularly, the federal committee currently controls any inquiry into harmonizing and reforming surrogacy arrangements within Australia (Snow 2016). Section 60HB of the Family Law Act of 1975 knows the orders of territory and state courts that move the legal paternity of kids born through surrogacy in order to enable legal proceedings sated in the Family Law Act.

Surrogacy in Australia

As a member to the U.N Treaties concerning child’s Rights, the Hague Convention towards Co-operation and Children Protection in Respect of Inter-country as other different pacts, Australia is committed to protecting the significant rights of children born via surrogacy. The conventions involve obligations to prohibit the sale, trafficking, and abduction of the children. In addition, extra caution is enforced by the individual in all cases of surrogacy that are entered in overseas (Darling, 2014). As a result, the imposed law ensures that Australia’s citizenship necessities are not used to prevent adoption decrees or any other children welfare laws.

Surrogacy arrangements done outside Australia might not meet a number of necessities for transfer of lawful parentage under territory and state law. This could be because the surrogacy arrangements involved are commercial or the parties involved might not have had independent legal advice or counseling (Darling, 2014).

Therefore, the legal parentage transfer to the intended couples might not be obtainable under Australian law. In such a case, the outcome could have a number of effects on children given birth through a transnational surrogacy arrangement. Therefore, the intended parents are expected to seek legal advice concerning possible causes of not being acknowledged as a legal mother of a child born through an intercontinental surrogacy management (Gerber and O’Byrne, 2016).It is an extreme offense to engage in a commercial substitute parent contract intentionally within Australia. In fact, the involved parties will be punished for such offense if they were normal residents within the Australian Capital Territory. The maximum punishment involves a fine of 15,000 dollars for the individual or 75,000 dollars for a corporation or jail sentence of one year (Storrow, 2011). Other offenses that have the extraterritorial impact, relate to procuring, advertising as well as facilitating commercial surrogacy. Nevertheless, such criminal bans have not been enforced to date.

Additionally, there is no policy in connection with international surrogacy arrangement whether commercial or altruistic, at any Commonwealth level. Besides, the default position involves a laissez method. Commonwealth agencies that offer passports and citizenship are not allowed to make decisions on whether the child was born thru surrogacy contract on not. This implies that the commissioned parents involved in surrogacy agreement internationally can attain Australian passport and citizenship (Margalit, 2015).By attaining the passports the children can go back to Australia while accompanied by their intended parents. On the other hand, bringing a child to live in Australia will require the intended parents to apply for Australian nationality by descent or a stable visa card for the child. In case, the child becomes a citizen of Australia by decent, the commissioned parents will as well require getting the child an Australian passport. In addition, any child born abroad to an Australian person does not attain Australian nationality by automatic law operation (Gerber and O’Byrne, 2016).However, that person can apply for the citizenship in Australia by descent. The process of citizenship application by descent is assessed depending on the requirements stated in an Australian Citizenship Act (2007).Also; the assessment can be done depending on the policy rules outlined in the Australian Citizenship Directives.

Legal Concerns for Intended Parents

Conclusion

To sum up, there are major variations towards the approach of surrogacy across the world. A number of countries forbid surrogacy completely; others allow a few while other allow all types of surrogacy arrangements. The regulatory surrogacy arrangement landscape is too in flux currently. Numerous jurisdictions have previously or are currently thinking of changing their laws. However, it is critically clear that not country survives in a vacuum. Therefore, every jurisdiction’s policy involving surrogacy agreement influences other nations, as well as their policy position regarding other countries, impacts the rest. Even where a state forbids surrogacy deal, it faces difficult problems especially when the child born through surrogacy has to be returned to his or her jurisdiction. However, despite that the developing nations have originally taken the advantage of bans of surrogacy in other places, they also react to allegations of harm and mistreatment. As a result of the growing complexities as well as international magnitudes concerning surrogacy, various analysts argue that legally binding instrument and multilateral is necessary. The concept will, therefore, establish a coherent as well as ethical principle of global commercial surrogacy.

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