Doug PollardSubtle discrimination - overseas paid surrogacy criminalised for NSW residents
Jeff & Rodney Chiang-Cruise & Ethan - photo Rebecca Hallan/The Age
The NSW Parliament has recently changed the law in relation to surrogacy - where a woman has a child for a couple, straight or gay, who would otherwise be childless. And on the whole the changes are for the better. Altruistic surrogacy - doing it for free - is no longer a crime. But paying a surrogate mother IS now a crime, punishable by up to 2 years in prison and a $110k fine. Even if the surrogate lives overseas .Rodney Chiang-Cruise, Co-convenor Gay Dads Australia explains how this law exposes gay couples to higher risks than straight couples.
DOUG: My next guest joining me right now is Rodney Chiang-Cruise, a concerned gay dad and one of the co-moderators of Gay Dads Australia. Good morning, Rodney.
RODNEY: Thanks, Doug. Thanks for having me in.
DOUG: You’re more than welcome. We were talking off air, we’ve exchanged emails quite a few times and locked horns a bit, on line and talked on the ‘phone. But we’ve never met before – so, nice to meet you in-the-flesh. The reason I asked you in was because of the New South Wales “Surrogacy Bill (2010)”, that just passed – now, this is both good-and-bad for gay dads isn’t it?
RODNEY: Yes. It’s actually really, really good news for gay men – in fact, all couples. Single people in New South Wales who want to pursue altruistic surrogacy. It allows them to legally pursue it and at the end of the process, be granted what are called: SPOs – or – substitutive parentage orders. Which will mean that two men who pursue altruistic surrogacy in New South Wales will be named as the parents, on the birth certificate.
DOUG: Which they’re not at the moment.
RODNEY: Which they’re not at the moment – and m’mm, that’s just wonderful news.
DOUG: This is altruistic surrogacy and for those of you who are dictionary challenged that means nobody gets paid - - -
RODNEY: That’s right.
DOUG: - - - it’s all done for the love of it but there is a bit of a problem because the same Bill penalised commercial surrogacy that is, the payment of a surrogate mother and I don’t know who else involved in the process?
RODNEY: That’s correct. The Bill was always going to criminalise commercial surrogacy conducted in New South Wales. (and) In fact, it’s illegal anywhere in Australia with I think the exception of the Northern Territory, to pursue commercial surrogacy. The sting-in-the-tail was just prior to the legislation going through the Lower House Linda Burney a Labor MP introduced an amendment supported by Clover Moore, which extended the criminalisation to acts which occur overseas. So the majority of people who do surrogacy do commercial surrogacy and they do it overseas – usually in the US and increasingly, in India. It means anybody who’s a resident of New South Wales who travels over to one of those countries for commercial surrogacy is going to come back a criminal. With quite severe penalties.
DOUG: What are the penalties?
RODNEY: The penalties are up to 2-years in gaol or up to a AU$110,000-fine.
DOUG: We have seen quite an expansion of surrogacy arrangements in India, in particular and I gather one of the driving forces behind this amendment was the notion we didn’t want to be exploiting poor women in foreign countries?
RODNEY: That’s certainly one of the arguments which was raised by Linda Burney and some other speakers – m’mm, in the House and in the upper chamber. There is always a risk that there is exploitation in any commercial transaction – whether it be for surrogacy or whether we’re getting a 15-year-old kid in Vietnam making our shoes – I mean, there’s always that possibility for commercial exploitation. I think the concern a lot of people have – both straight-and-gay – is the legislation doesn’t make any distinction and for example, in the US the women who are into commercial surrogacy are screened. They have police checks – financial checks - - -
DOUG: M’mm.
RODNEY: - - - and they do it knowing what they’re doing. For American women it’s an issue of: ‘it’s my body and my reproductive processes’ – and they intend to control it so, it doesn’t make any distinction. It doesn’t filter-out those who are willingly surrogates. Such as our surrogate (sic) - - -
DOUG: Yeah, I think there’s a difference there between a country like the US and a country like India. I think that’s probably what was playing behind this amendment - - -
RODNEY: Certainly. There is - - -
DOUG: Let’s be blunt about it. A lot of people were going to India for surrogacy because it’s a heck-of-a-lot cheaper there.
RODNEY: That’s right and – m’mm, it’s still incredibly expensive. But it’s still a lot cheaper than doing it in the US and there is that concern that in a country like India which is classed as a third-world country, that the women are being exploited. Again, the question comes up: are the women really being exploited – or – is this a view that’s held without any evidence? The evidence we are aware of is that the women who are involved in commercial surrogacy in India are making free decisions about what they do with their bodies and how they earn money – and yes, it is – they are using surrogacy as a way to earn money. Just as women in the US are doing.
DOUG: So, it comes down to really whether one has a moral objection to commercial surrogacy in the first place. This is what’s really at the back of this, isn’t it?
RODNEY: Yeah, I think that’s a lot of the issue that underpins the arguments. Particularly coming from Feminists. It’s quite an interesting argument that - the argument goes that women should be able to control their reproduction and not have people interfere with it – but as soon as they want to maybe, make some money out of it all-of-a-sudden they should have other people’s values imposed upon them - - -
DOUG: M’mm.
RODNEY: - - - it’s an interesting argument. I understand what the arguments are, I don’t necessarily agree that they’re applicable to everybody.
DOUG: I think part of the problem and it relates to – well, this works in a lot of areas. It relates to the effect of criminalising an activity - - -
RODNEY: M’mm.
DOUG: - - - we were talking a little earlier in the programme about criminalising HIV transmission and all that does is drive people underground and then they don’t seek help and they don’t seek counselling. Do you think this is likely to have a similar impact on people going overseas for surrogacy?
RODNEY: Absolutely and in fact, Penny Sharp the Upper House MP – Labor MP, New South Wales, read out a report from Jenni Millbank who commented that straight people who are the predominant users of commercial surrogacy in India, when they go overseas they’ll come back with a birth certificate that has – m’mm, the woman and the two intended parents – the mother and the father – on the birth certificate; so, there’s no need for them to declare they had the child through surrogacy. So they’re just going to go underground. They’re not going to be acknowledging it for fear of persecution. Straight people have a very easy way out of this.
DOUG: M’mm.
RODNEY: Gay people on-the-other-hand it’s a little bit obvious that there’s – m’mm - - -
DOUG: [laughs]
RODNEY: - - - m’mm - - -
DOUG: There’s a third-party involved.
RODNEY: There’s a third-party involved - - -
DOUG: Yes.
RODNEY: - - - so they don’t have that luxury of being able to avoid potential persecution.
DOUG: Yes, ‘cause you can’t get a certificate overseas that says you two guys – or you two women, are the child’s parents?
RODNEY: You can. You can in some countries. Certainly in the US that’s common practise in most States. In India, it’s the – what goes on the birth certificate is the surrogate’s name and the sperm donor’s name.
DOUG: Right. This could have implications for example, if the child does have an Indian heritage, say – it could have implications for keeping that child in contact with its inheritance in that respect - - -
RODNEY: Absolutely.
DOUG: - - - contact with the surrogate mother or the egg donor – or the sperm donor, whoever was used?
RODNEY: Absolutely and that’s the fear Jenni Millbank raised in her submission was that parents fearful of prosecution are not going to be disclosing this to get parenting orders or adoption in New South Wales. They’re just going to pretend that they were the natural parents and that – m’mm, pretence is going to flow over into how they tell the child about their origins. Something of course, gay people can’t do.
DOUG: Yes. I think somebody didn’t think this one through too well did they?
RODNEY: It was a very last-minute amendment and it came less than 24-hours before the legislation was passed, we were taken by surprise by the amendment. We got a lot of people writing letters but in the end, it was only a handful – well, a couple of Labor supporters - - -
DOUG: M’mm.
RODNEY: - - - a National Party MP and four Greens who opposed the amendment.
DOUG: Is this only in New South Wales, this overseas clause applies?
RODNEY: No. The overseas clause applies in Queensland and has before and since they introduced their new surrogacy law so it’s been there for a long time, in Queensland. Also applies in the ACT and I should say that to our knowledge there has never been a prosecution brought for somebody doing commercial surrogacy overseas. In either Queensland or the ACT and I suspect it would be a very difficult prosecution to bring.
DOUG: [laughs] Yes, I can see that without very much thought at all. That it might be – what’s the situation here in Victoria?
RODNEY: Victoria – Victoria, doesn’t criminalise extra territorial activities with regard to commercial surrogacy. Commercial surrogacy itself, is illegal in Victoria. But if you go overseas to the US or India to do commercial surrogacy you don’t come back a criminal. However, recent news has indicated that law only changed in 2008 and prior to that it was a criminal offence. (and) Of course the surrogacy boom certainly with gay males, started in Victoria and long before that – so there’s including myself, there’re a lot of potential ex-criminals out there.
DOUG: Does this mean we’re going to see a sudden flood of potential gay dads to Victoria?
RODNEY: Well, we’ve been contacted by a couple of couples who are in New South Wales who have indicated that they don’t want to risk this and they really want to have a family. They’re packing-up everything and moving down to Victoria so they can be certain. But I must say that a lot of New South Wales couples are re-assessing their options are going to decide how to proceed.
DOUG: Yeah – because I mean, it’s only just passed. It’s not likely going to be any change to it for some considerable time to come. So - - -
RODNEY: No - - -
DOUG: - - - got to live with it at the moment.
RODNEY: There’s a 3-year review period on this legislation and I don’t think it’ll matter how much people jump up-and-down and how unfair it is. I think the response from the government would be well, we’ll review it in 3-years and see how it’s travelling then.
DOUG: Yeah and let’s hope we don’t have any nasty cases in the meantime?
RODNEY: I suspect it’s very unlikely.
DOUG: It sounds like it. It sounds like it’s one of those – it’s a nice political gesture but it doesn’t actually have any impact in reality.
RODNEY: It was made very clear by Linda Burnley and a lot of people who spoke that the effect of the legislation was to act as a deterrent which is what legislation in this context does but I think they rightly recognise it’s not going to stop the practise. When people want to have kids – straight people or gay people – they will go to extraordinary lengths to achieve that and I don’t think this legislation is going to stop that one bit.
DOUG: [laughs] No – m’mm, I don’t think so either. Rodney, thank you very much for coming in this morning. It’s nice to meet you at last.
RODNEY: Good to meet you as well.
DOUG: (and) Good luck with your family.
RODNEY: Thanks very much, Doug.
DOUG: I’m sure it’s a very happy family, indeed. (and) There’re going to be some more happy families too – I’ve just heard Greens member for Melbourne Adam Bandt’s motion calling on members of parliament to gauge their constituents’ views on same-sex marriage was passed by the House of Representatives – 73:72. So – line ball, but he got it through. At this stage it appears there were no Coalition MPs supporting the motion. It must’ve been supported by the Independents – that’s Tony Windsor, Rob Oakeshott and Andrew Wilkie. In fact, Wilkie was the seconder on the motion so well done, Adam. Another step along the road.
