Statement by Donorkinderen, Spenderkinder and Stichting Donorkind against commercial surrogacy

The Parliament of Australia has established an inquiry into commercial surrogacy. Donorkinderen from Belgium, Spenderkinder from Germany and Stichting Donorkind from the Netherlands submitted the following joint statement today. Please note that this is not a statement by all members of DOE, as some member organisations have not decided on a public opinion on surrogacy yet.

We welcome the opportunity to present the view of European adults conceived by sperm donation to the Parliament of Australia on its inquiry into surrogacy. As donor conceived persons we have life experience what it means when commercial logic and commercial strategies invade ones most private and intimate relationships.

Commercial surrogacy should be outlawed

From the view of persons conceived with the help of reproductive technology, we think that commercial surrogacy should be outlawed in all countries and kindly ask the Government of Australia not to lift its ban on commercial surrogacy agreements.

While we acknowledge the pain of infertile persons, we do not think it gives them the right to rent another woman’s womb and to receive a baby – a human being, a person – for payment. There is neither a right to a child nor a right to be allowed to take all measures that are technically possible. The desire to have a child is understandable – yet there can be no justification to fulfill such desire at the expense of the interests of the child and mother.

1. Commercial surrogacy is a violation of the rights of the child

Commercial surrogacy basically means trading children for money. This is a violation of the rights of the child – solely for the fulfillment of a personal desire of someone else. In most cases, the surrogate – the birth mother – will receive no money for an attempt to become pregnant or pregnancy itself. She will only receive compensation for her “work” or “efforts”, if she hands over a child – in most cases, a healthy child.

If the legal system allows children to be traded – assuming that it will be to persons who will provide a loving home to them – it devalues the dignity of human life itself. The criminal codes of most countries prohibit all form of exploitation and trafficking of human beings. There is no reason why surrogacy should be considered as something different than child trafficking. Simply because the child was conceived in order to be given away directly after being born or because it may be genetically linked to one or both of the purchasers does not change this.

Australia has ratified the Convention on the Rights of the Child. Article 35 of the Convention provides that states parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. As a state party to the convention, Australia is obliged by international law to comply with this provision.

The law itself should not facilitate the deliberate breaching of the biological bond between mother and child. It is in the best interest of the child to be brought up by its birth parents. The children born by surrogacy will have to live with the knowledge that their mothers have intentionally given them away – in return for a financial consideration. No surrogacy contract can protect the child from the wrong done to him or her by being brought into the world in these circumstances. It imposes a fundamental injustice on those who don’t have an actual voice. Throughout various state and Commonwealth legislation in Australia, there is continual reference to the child’s welfare being paramount. However, commercial surrogacy fails to acknowledge this important principle by making the welfare of the adults superior which is hypocritical.

2. The intentional separation of mother and child after birth is not in the best interest of the child

Surrogacy intentionally severs the gestational link between the child and the natural mother. During the nine months of pregnancy, the baby connects with its mother through her voice, heartbeat, smell and flavors in the womb. This bond is consistently encouraged and promoted by medical professionals during “normal” pregnancies. To force the surrogate mother to emotionally seal off from the child so she can give it away and to separate them after birth goes against human nature and is not in the best interests of mother and child. It has also been recognized in the field of adoption that the welfare of the child is best served by being raised by its birth parents. This is the fundamental principle behind the national apologies made by the Commonwealth to the “Stolen Generation”, children from forced adoptions as well as child migrants. To promote and sanction commercial surrogacy would not be consistent with this ethos and apologies.

Studies show that the separation between mother and child is harmful for the child. Infants can endure a deep subconscious trauma because they were removed from the person that offered them protection and security. There is a study that implies that children through surrogacy are more likely to suffer from a depression than children who grew up with their birth mother.

3. Commercial surrogacy means a commercialization of all areas of life

Surrogacy enforces the commercialization of all areas of life. Everything becomes a good that can be traded, even a child: it is considered as a good that can be ordered, planned and selected.

The fact that children can be ordered attaches conditions to that very child. This is demonstrated by the infamous Baby Gammy case – intended parents who left “their” child behind due to the fact that it was not in perfect health.

It also means that the surrogate mother and the baby become disposable. In the United States, an intended father reportedly tried to force a surrogate mother to abort one of the healthy triplets she was carrying for him because he did not want three babies. When she refused, he threatened to financially ruin her by imposing monetary damages for breach of contract.

The (multinational) fertility industry is fully aware of the market value of gametes, wombs and children. A prior lucrative business is built on the desires of intended parents. This sector earns vast amounts of money from selling options to people in despair, advertising the idea that the unreachable is reachable when nature can be tricked. They are the interest group pushing to legalize commercial surrogacy so they can expand their market opportunities.

4. Commercial surrogacy exploits women

Commercial surrogacy is directed against the dignity and the integrity of women, because the body of the surrogate mother is instrumentalized for reproductive measures. Women are downgraded to their prehistoric reproductive status.

Surrogacy also opens the door to abuse and exploitation of poorer population groups. It is a known fact that the international trade in surrogacy exploits poor women in developing countries. It is, however, not obvious that legalizing commercial surrogacy in Australia would change that. The income disparity may not be as great as between purchasers from Western state and a surrogate from a developing country, but experiences from the United States show surrogacy is typically only an option for poor and less educated women. These unequal transactions result in consent that is under informed if not uninformed, low payment, coercion, poor health care, and severe risks to the short- and long-term health of women who carry surrogate pregnancies. Subsequently the surrogate’s own autonomy is adversely affected. Also, surrogacy inevitably generates discrimination – in many cases, it is the poor who have to sell and the rich who can afford to buy.

There is a reason for the fact that only very few women in Australia are willing to enter into an altruistic surrogacy agreement. A pregnancy is an emotionally and physically challenging situation. Being pregnant for someone else implies availability and implications for months in their private life, health and work. Also, surrogates are often over stimulated and carry multiple embryos. Accordingly, the main reason to consider surrogacy is money, only sweetened by the idea that they can make another person very happy by giving them a baby.

It is against various Australian legislation and guidelines to pay people to donate blood, organs, or even gametes. Commercializing surrogacy would be against the altruistic and non-coercive nature that Australia upholds.

The medical process for surrogacy entails risks for the surrogate mother as Ovarian Hyper Stimulation Syndrome (OHSS), ovarian torsion, ovarian cysts, chronic pelvic pain, premature menopause, loss of fertility, reproductive cancers, blood clots, kidney disease, stroke, and, in some cases, death. Also, women who become pregnant with eggs from another woman are at higher risk for pre-eclampsia and high blood pressure. Pre-eclampsia is a leading cause of maternal and fetal morbidity and mortality. Recently, a US surrogate died due to the complications of a pregnancy.

Babies born through the use of another woman’s eggs, as is the case in surrogacy, have been shown to suffer greater incidences of being born of low birth weight and prematurely when compared to those conceived in other IVF procedures in which those babies are already suffering higher incidences of poor outcomes than the general population. These poor outcomes are then associated with poorer outcomes in later life such as heart disease and diabetes. Subsequently, surrogacy creates a class of people whose health will fare worse in adulthood and provide a greater strain on the public health system.

5. Surrogacy is messy

As several lawsuits in the United States prove, surrogacy agreements are messy. There will always be cases where the intended parents will try to back out of the arrangement, demand an abortion from the surrogate or abandon the children after they are born. It is more likely that a pregnancy that is not lived by the intended parents themselves but outsourced to another person facilitates this kind of behavior. On the other hand, there may also be surrogates who develop maternal feelings towards the child and would like to keep it.

If Australia is to legalize commercial surrogacy, it will leave its courts with complicated and highly emotive situations to resolve. Is the country really willing to force a mother to hand over her baby to the intended parents – as has recently happened in the UK?

6. There is no reason to legalize commercial surrogacy

In our opinion, the argument that “commercial surrogacy will happen anyway, if not in your own country then in other countries under even worse circumstances abroad“ is not a valid one. Giving in to these arguments means a capitulation in face of an internationalized way and to abstain from any will to shape a political agenda at home. There will always be countries with less strict laws. At the same time, there will always be people wanting to commission a surrogate overseas, simply because it will be cheaper than a legal commercial surrogacy in Australia.

Absurdly, supporters of surrogacy are taking hostage of the misuse of foreign commercial surrogacy agreements and make it sound as if it was a moral imperative to allow surrogacy at home because it will protect the surrogate mothers and the rights of the children born. There is, however, no ‘ethical form of surrogacy’. Under the false assumption to impose strict conditions, Australia would neglect the responsibility to protect the weaker parties involved: the mother and the child.

The contrary will be the case if commercial surrogacy is legalized – more surrogacies will take place, and the ideal will prevail that wombs can be rented and children can be sold and bought.

7. The appropriate answer to the misuse of surrogacy abroad is to tighten measures against commercial surrogacy agreements abroad

The argument that surrogacy will happen abroad if it is not regulated at home also does not recognize that typical countries for surrogacy tourism like Thailand and India have recently tightened their laws and basically banned foreigners from surrogacy agreements. This means that these countries are well aware of the precarious situation of surrogates and children born through surrogacy and acting on it. Therefore, it is difficult to understand why Australia is even considering to lift the ban on commercial surrogacy.

To allow a more “humane, regulated form” of surrogacy will not stop indented parents to buy children through other channels. Even more: it will only give the other forms of surrogacy leverage to be pushed through. And of course children – like Baby Gammy – who do not come up to the expectations of the commissioning couple would still be at risk of abandonment.

Especially after the experiences with Baby Gammy the right course of action should be to tighten measures on the ban of commercial surrogacy. In our opinion, this means introducing and enforcing a ban on commercial surrogacy agreements in other countries, for example by fining persons who enter into such agreements and by prohibiting all advertising for and procurement of commercial surrogacy agreements.