MERCATORNET: 2014: the year of international surrogacy
By Claire Achmad
January 6, 2015
This year the international spotlight turned with full-force on cross-border commercial surrogacy. The reality of children being born this way and the potentially devastating consequences of babies being abandoned and stateless shocked our collective consciousness.
Such was the case of Baby Gammy, born with Down syndrome and left in Thailand with his surrogate mother by commissioning parents David and Wendy Farnell. His story made the Australian public confront the often-disturbing reality of the international commercial surrogacy industry.
This industry provides on-demand, made-to-order children, allowing commissioning clients to circumvent the often prohibitive laws on commercial surrogacy in their home countries. It is a high-risk, high-stakes transaction for all involved.
Through Baby Gammy and more recently, the situation of a twin-child left in India by Australian commissioning parents (which senior Australian judges have said may amount to child-trafficking), we have witnessed the heightened vulnerability of children born this way.
A problematic practice
When I began working on international surrogacy issues in 2009, there was little public awareness about people from Australasia having children in places such as India and Thailand through surrogate mothers. The fact that such children were sometimes conceived using the eggs or sperm from third parties in other countries was even less known.
Fast-forward to 2014, and times have somewhat changed. Far less explanation is necessary about what international surrogacy is and what it entails. But reactions still range from the morally outraged, to a permissive “why not?” attitude.
Yet despite more community understanding, ignorance surrounding the ethical, legal, and human rights challenges triggered by the practice persists. And this gap means positive action to protect children in international commercial surrogacy in a comprehensive and systematic manner is seriously lacking.
The United Nations Convention on the Rights of the Child states all children have rights to nationality, birth registration, preservation of their identity, to be cared for in a family environment, know their parents, not be discriminated against and not be sold or trafficked. Children with disabilities have additional particular rights.
But children born through international commercial surrogacy are routinely at risk of having these rights violated. Indeed, many children born this way have ended up stateless and stranded in their birth country (for example, Baby Manji, Baby Samuel Ghilain, and the Balaz and Volden twins).
Some have been left without legal status and legally recognised parents (as in the Mennesson and Labassee cases, recently adjudicated by the European Court of Human Rights), or abandoned, devoid of a family environment.
The vast majority of children born through international commercial surrogacy face difficulties in preserving aspects of their identity due to the involvement of anonymous genetic donor parents, surrogate mothers, and the fact they’re born with the intention of being supplanted into another country and culture.
Indeed, international commercial surrogacy is arguably a market in which children are bought and sold; where they are commodities at risk of trafficking. This raises questions about whether this practice can ever be consistent with our internationally agreed ban on the sale of children.