Commercial Surrogacy In Australia

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Why the law is contradictory and ineffective when it comes to overseas surrogacy- Altruistic surrogacy is diversely regulated by the states and territories, raising the issue of the interaction of those laws in international cases. Commercial surrogacy is prohibited in Australia, but is permitted in other countries. An increasing number of Australians exploit this difference by entering into commercial surrogacy agreements overseas, raising the question of the effect of such agreements in Australia. Suggesting that the well-meaning regulation of altruistic surrogacy and criminalisation of commercial surrogacy within Australia is likely to be ineffective in cross-border situations. Accordingly, suggests to reform the Australian law and endorses …show more content…

Cases of this kind emphasise the tension between two significant policy goals: the child’s best interests, which must dominate the court’s determination as to whether to grant parenting orders, and the prohibition of commercial surrogacy. The former, naturally, prevails. In every published case, the Family Court relied on the evidence tendered by the intended parents indicating the foreign birth mother’s consent to the applications, even where some of that evidence was quite concerning; the birth mother’s lack of interest in parenting the child;and the satisfactory nature of the parenting arrangements achieved under the agreement, in concluding that the best interests of the child were served by making the parenting orders.The earliest published international surrogacy case is Re Mark (an application relating to parental responsibilities). The facts are fairly typical. A couple from Victoria entered into a surrogacy contract under which a woman in California agreed to bear a child for them; the ovum was supplied by an anonymous woman, and one of the applicants provided the …show more content…

The effect of the surrogacy agreement is fascinating. Brown J insisted that ‘it is the Family Law Act that governs this case, not the provisions of the surrogate agreement’. But the significant factor of the birth mother’s lack of objection to the application was consistent with her obligations under the agreement. The result of the litigation was consistent with the outcome which the parties attempted to secure by their agreement. The effect on the state’s criminal prohibition of commercial surrogacy was regarded as irrelevant, even though Brown J noted that a dominant explanation for the intending parents’ decision to enter into a surrogacy agreement in California was that ‘such an agreement would be illegal in Victoria’. Without explanation, her Honour held that the illegality of the agreement was not a relevant consideration. There is now a significant number of recent cases which are similar to Re Mark, although from these cases it appears that Thailand has become a popular destination for Australian intended

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