It doesn’t matter if it’s making babies as a commercial surrogate or a10-year-old kid stitching together basketball shoes in Vietnam, exploitation in any commercial transaction is wrong and should be punished.
But you don’t ban basketball shoes. And I don’t understand why Australians have been banned from using commercial surrogates overseas.
Last year NSW passed its Surrogacy Act which, when it comes into effect, will make pursuing commercial surrogacy overseas a criminal act.
The new changes mean someone who goes overseas to use a paid surrogate will face a penalty of two years’ jail, an $110,000 fine when they return.
While paid surrogacy in NSW is already illegal prospective parents have always had the option to venture overseas.
Will it work? If you’ll excuse the pun, I think it’s a case of the government putting all of its eggs into the “too hard” basket.
During her push for the changes NSW Minister for Community Services, Linda Burney, said the laws are in place to prevent the commodification of women and children.
This is a noble aim.
The problem is the law doesn’t discriminate and makes no allowances for women who willingly want to become commercial surrogates. It just declares “you are all exploited” and that’s that.
But is it the case? In the US women who want to become commercial surrogates are given thorough screening including police and financial checks.
I would never assume to tell them they are exploited without knowing their individual situation, nor would I assume to say they weren’t exploited.
The same is true for what is becoming the powerhouse of paid surrogacy – India.
It is easy to claim Indian women in this developing nation are being exploited but the hard evidence coming out of the country is contradictory and vague.
But what about the children who are the product of this commercial arrangement?
It is the part of the whole argument which has given me pause, and almost stopped me from writing this - commercial surrogates are producing a product and that product is a child.
Of course there is a thin semantic line - technically they aren’t selling the children, they are selling the gestation of one.
And that creates a veritable Pandora’s Box of moral and ethical issues.
The government is naive to think it will ever stop couples who can’t have their own children exhausting all the alternatives, legal or otherwise.
The reality is banning surrogacy will never stop people from trying, but they will do it without declaring it, effectively turning to “cash- in- hand mums”.
In an interview with the ABC last year Professor Jenni Millbank, a Family law specialist from the Sydney University of Technology said hopeful parents had already indicated they would go ahead with overseas surrogacy secretly.
Criminalising something, such as alcohol, has never gotten rid of it entirely - it pushes it underground with sometimes fatal consequences.
When we are talking about the wellbeing of a child every effort should be made to ensure it is safe.
It is a tough balancing act to weigh the rights of a child with the rights of individuals to become parents.
It is not one that should be undertaken lightly, and it is a difficult and uncomfortable task.
But who is better qualified or more compelled to take on this task than the government?
Speaking on abortion former US president Bill Clinton said he thought it should be “safe, legal and rare”.
The same argument should be applied to commercial surrogacy.
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