Impact of compensated surrogacy on children’s rights

15 June 2017

Interview with child rights specialist Prof. Paula Gerber of Monash Law School

by Apolline Kempter

Compensated surrogacy is a flourishing yet controversial way for Australians to have a child. Some insist the practice should continue to be prohibited in Australia, believing it constitutes child trafficking, while others want to see it legalised and regulated, as a legitimate way for infertile people to start a family.

Dr Paula Gerber, human rights law professor at Monash University, Melbourne, is a defender of compensated surrogacy on the basis that intended parents often have no other options for starting a family. Prof. Gerber explains that the current surrogacy system in Australia – which is only allowed when undertaken altruistically – is so difficult and complex that many couples are effectively ‘forced’ to go overseas to find a surrogate.

Hundreds of Australian couples are doing this every year. Yet depending on where they live, engaging a compensated surrogate abroad may be a criminal offence.

The UN Convention on the Rights of the Child (CRC) – ratified by every nation in the world except the USA – is a good starting point when considering the rights and wrongs of compensated surrogacy.

For example, the right to identity (Article 8) may be violated where records are not kept of the circumstances of a child’s birth. Everyone has a right to complete information regarding the circumstances of their birth.

As we know from long experience with adoption – and more recently with donor conception – knowledge of one’s genetic origins can be very important to a person’s sense of identity. Transnational surrogacy is occurring, and thus it is essential that it is properly regulated, so that people can access records relating to how they came to be born.

The CRC also guarantees the right of children to know and be cared for by their parents (Article 7). This compels us to ask, who are the parents of a surrogate-born child, when there are so many people involved (the surrogate, the intended parent(s) and, potentially, an egg and/or sperm donor)? It is time for the law to recognise that a child may have more than two parents.

Professor Gerber argues that intended parents should be considered the legal parents of a surrogate-born child, because it is they who initiated the process that led to conception and it is they who will raise the child. But the child’s birth certificate should record all gestational, genetic and intended parents, and record the fact of the surrogacy arrangement. Such transparency protects the right of a child to know their parents.

The right to nationality (Article 7) may be violated where the country of birth and/or of intended residence erect roadblocks to a surrogate-born child acquiring citizenship.

At present, a child born overseas through surrogacy can only acquire Australian citizenship if one of the intended parents is Australian and that parent is genetically related to the child.

For example, if a single woman can’t conceive because, say, she had ovarian cancer, and so needs both an egg donor and a sperm donor, as well as a surrogate, she will have difficulty getting Australian citizenship for the child because she is not genetically related to the child.

Where one or both intended parents is not genetically related to the child, they must initiate legal proceedings to obtain citizenship for the child and a court order recognising them as the child’s parent(s). As it stands, with compensated surrogacy illegal in Queensland, NSW and the ACT, families in those states may be reluctant to go to court to get a parenting order or apply for citizenship on behalf of their child, for fear of prosecution.

Whatever one may think of compensated surrogacy, it is not in a child’s best interests to be without citizenship or legal parents. A child without citizenship or legal parents faces risks of other human rights violations, such as an inability to access the right to health and education.

Prof. Gerber argues that non-genetically related parents should be recognised as parents more readily, with mechanisms in place to protect surrogate-born children from trafficking and other human rights violations.

The sale or trafficking of children is prohibited in international law “for any purpose or in any form” (CRC Art 35). Prof. Gerber maintains that compensated surrogacy does not amount to buying a child. Rather, it is a contract in which a surrogate is compensated for the service she provides in carrying a child for another.

Prof. Gerber wants to see Australia legalise compensated surrogacy in order to better protect the rights of children. Australia has robust systems for registering gamete donors and recording how children are born and, in some jurisdictions such as Victoria, there is screening of all parties prior to commencing fertility treatment. Australia should establish a regulatory regime that allows for compensated surrogacy with strict requirements regarding access to information and legal advice. This would create a secure and reliable process, and reduce the incentive for Australians to go abroad to procure surrogacy. All parties involved should be given advice and counselling on the procedure and warned about the risks.

Although compensated surrogacy is illegal across Australia – and for would-be parents in Queensland, NSW and the ACT, it is also a crime to go abroad to secure a surrogate – hundreds of Australian couples still engage overseas surrogates every year. To date, not a single person has been tried or convicted of this ‘crime’. This suggests these laws are failing.

A 2016 Parliamentary inquiry into the regulation of international and domestic surrogacy made several child-rights based recommendations relating to child safety and well-being, freedom from exploitation and discrimination, the right to know one’s genetic heritage and to choose to have a relationship with one’s surrogate, siblings and/or genetic donor/s. However, the Parliamentary Committee recommended that commercial surrogacy remain illegal in Australia. This is unlikely to be the end of matter.

International and domestic laws should keep up with social and technological advances. Prof. Gerber sees the reaction to surrogacy today as mirroring the reaction to the first ‘test tube’ baby in the late 1970s, noting that IVF is now a popular and accepted means of having a child.

Compensated surrogacy will continue to generate complex, and at times heated debate. A child’s rights-based approach, always prioritising the best interests of children born via surrogacy, should guide law reform regarding surrogacy in Australia.


The views expressed in the above article reflect those of the interview subject and are not necessarily shared by Child Rights Australia or International Social Service (ISS) Australia. This interview is posted here to increase public awareness and encourage informed and respectful debate on all matters of relevance to children’s rights.