A friend, Facebook or ... Ukraine? No easy surrogacy options for Australian families desperate for children
Over eight years, Ethan and his wife went through nine rounds of IVF in Melbourne.
They travelled to Spain for two more, without success.
“I thought maybe the universe had decided we’re not supposed to have kids,” says Ethan, who asked for his real name not to be published.
Finally, someone suggested surrogacy.
“We kind of looked at each other,” Ethan says. “It’s the last station on the track.”
Australian states and territories allow altruistic surrogacy, where the only payment allowed is to cover the surrogates’s expenses. Commercial surrogacy is illegal, so hundreds of people head overseas each year chasing their dreams of parenthood.
The Australian Law Reform Commission is looking at how to better regulate surrogacy and harmonise laws so they are consistent with international legal obligations, while protecting human rights – particularly the rights and best interests of the child.
Among the more than 400 submissions to the ALRC are tales of complicated legal scenarios and painful wrangling about medical issues. There are explorations of the ethical minefields in an industry where huge amounts of money are at stake and power imbalances are in play.
And over and over again, there are stories about people who desperately want a child, and the lengths they will go to to get one.
‘We’re still in a chat group with our surrogate mother’
One submission describes a couple’s “often perilous odyssey” after six IVF cycles, when war trapped their embryos in the Ukrainian capital, Kyiv, only for them to be lost in a power outage. They tried again in Georgia but that nation legislated a ban, voiding their contract.
Another details the travel of sperm over two or three years as it moved between locations in Ukraine because of the war with Russia. The surrogacy was successful but the submission laments the difficulty of obtaining Australian citizenship by descent for the child.
One couple travelled to Colombia for a “guaranteed” surrogacy within two years. More than three years and $65,000 later, they are still waiting.
Ethan says he looked at South America but read about cartel behaviour and human trafficking. He considered into northern Cyprus but Australia doesn’t recognise the breakaway state, so any child born there would not be eligible for Australian citizenship by descent.
He and his wife had already spent hundreds of thousands on IVF, so could not afford a further $250,000 for surrogacy in the US, which is considered the gold standard for its level of regulation.
So Ethan ended up going to Ukraine to sign a contract, forking over $125,000 for the surrogacy program and a further $60,000 on travel and other costs.
He and his wife went back there for the birth of their daughter, who is now nine months old. They had a nervous wait for the surrogate to go into labour, then navigated onerous bureaucracy to bring the baby home.
Their surrogate was able to buy a house with her payment.
“We’re still in a chat group with our surrogate mother,” Ethan says. “She was excellent. We would send soundbites and she would put it to her stomach and play it to our baby.”
Altogether the couple spent about $450,000, from the first IVF treatment to having a daughter.
The Department of Foreign Affairs and Trade says in its submission more than 1,300 children born through offshore surrogacy have been given Australian citizenship in the past five years.
The costs range from under $50,000 in “very high-risk, unregulated developing nations” to more than $300,000 in “highly regulated developed nations”, its submission says.
The amount agencies pay to surrogates varies dramatically.
Dfat says about 5% of children born by surrogacy to Australians are abandoned, which would translate to more than 18 babies each year.
‘I am “pro” having people make informed decisions’
The National Health and Medical Research Council is responsible for advising on ethical considerations in healthcare, including surrogacy. In its ALRC submission, it says “the current ethical position” is that altruistic surrogacy is acceptable, while commercial or compensated surrogacy is ethically unacceptable “because it raises concerns about the commodification and exploitation of the surrogate, the commissioning parent(s) and any person born as a result of the surrogacy arrangement”.
Sarah Jefford is a lawyer in the field and the author of a surrogacy guide, More Than Just a Baby.
She does not oppose financial compensation when the surrogate is paid within a good legal framework, with informed consent.
The vast majority of surrogacy arrangements in Australia are altruistic ones with friends or family, she says, although this can bring its own complications.
But those without a willing surrogate among people they know are driven to search on social media or overseas.
About three in four of those then choose the overseas option, she says, putting them and their surrogate at risk of exploitation.
“The best thing we can do about that is make it safer in Australia, where we can protect the rights of women and children,” she says.
“If we make it easier, more accessible … if we regulate the industry here, and make it easier to find a surrogate here, you make it better for women overseas.”
Jefford says the surrogacy industry makes promises like “guaranteed baby packages”, using slick marketing with AI pictures of couples with infants to appeal to would-be parents.
“They’ve had miscarriages and cancer diagnoses. They’ve saved up, they’re so desperate. Some intended parents don’t say ‘at all costs’, they worry about ethics. Others will still do it at all costs.”
Jefford says a lot of the opposition in Australia stems from homophobia and an insistence from religious groups that babies should have a mother and a father.
Many conservative and religious groups have made submissions vehemently opposed to surrogacy.
FamilyVoice says there is no case for surrogacy and points to “factors that have led to an increase in infertility” including “delayed childbearing, abortion (especially multiple abortions), and promiscuity and associated sexually transmitted infections, such as chlamydia”.
The Australian Christian Lobby says surrogacy should be banned, arguing that children should be raised by “their two natural, co-residential, married parents”.
ADF International – the global offshoot of the ultra-conservative, anti-LGBTQ+ Alliance Defending Freedom now active in Australia – has been at the UN calling for an international moratorium on surrogacy, followed by complete abolition.
In its ALRC submission, it argues against surrogacy on the basis of the exploitation of women and the objectification of mother and child, pointing to India, where surrogacy was outlawed after accusations that young, poor women were exploited.
An ALRC discussion paper with 41 proposals – including more consistent regulation and more streamlined processes to bring a child home – shows it is not considering an absolute ban. Its final report is due on 29 July.
Jefford has two teenagers and was herself a surrogate.
She says she enjoyed being pregnant, understood the heartache of fertility issues, and gave birth eight and a half years ago to the child of a gay couple she met through Facebook. The experience was complicated, beautiful and amazing, she says.
“I don’t think I’m pro-surrogacy,” she says. “I’m not ‘pro’ people having babies. I am ‘pro’ having people make informed decisions.
“And that includes making reproductive decisions such as having a baby [as a surrogate] and not raising it.”