Global Baby Making in Australia
Globalization and technological advancements enhance the practice of international surrogacy. The internet, for example, enhances the link between commissioning parents and willing surrogates. As a result, Australia is not an exception of the global phenomenon. The problem is unique because it presents a phenomenon not anticipated in the last 30 years. For example, there is little literature during the time that focuses on the split of biological, social, legal and commercial parenthood. It is also an issue that highlighted the inadequacy in the family law and rights of children. Different countries establish various approaches to commercializing surrogacy. However, in Australia, commercial surrogacy agreement is illegal. As a result, the birth of a child by a surrogate mother in a foreign country with genetic or intended parents from the country creates a myriad of legal challenges not anticipated during the agreement.
Definition and Historical Context
Surrogacy is a practice where a woman becomes pregnant and later surrenders the child to another family. As a result, the surrogate assumes the role of the mother when carrying the unborn child. The law in Australia defines two forms of surrogacy; the altruistic and commercial. In an Altruistic surrogacy arrangement, the surrogate receives no compensation delivering a baby. In a commercial arrangement, the surrogate receives compensation for the delivery (Tieu, 2009). It applies the free market philosophy where the surrogate mother and father maximize the gains. Secondly, form a medical perspective, there is the traditional and gestation surrogacy. In the traditional surrogacy, the biological father donates sperms to the surrogate, with the expectations that she will relinquish the parents’ rights (Smolin, 2007).
However, with technological advancements, modern practices use gestational surrogacy. It is where the physician transfers donated gametes from the parents to the surrogate for gestation. The donation can either be from anonymous or intended parent. As a result, the child is not the genetic offspring of the surrogate (Tieu, 2009). Global surrogacy is an arrangement between intended parents in one country and a surrogate. Nonetheless, it can be either gestational or traditional and the agreements can be commercial or altruistic. The common reason for its practice is local prohibitions, and therefore, most international agreements in Australia are commercial. Local restrictions such as the prohibition of commercial surrogacy increase the demand for international surrogacy (Cuthbert & Fronek, n.d.).
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In the 1970’s, an Australian couples searching for adoptable infants in the local market faced numerous challenges. Such factors as the 1973 commonwealth single mother benefits, access to abortion and contraceptives and the shift in social attitude to extramarital sex and births decreased the birthrate in the country. Before the introduction of in-vitro fertilization and other assisted reproduction procedure in 1978, adoption was the primary solution for infertility. For example, between 1971 and 1972, there were more than 1000 adoptions in the region (Cuthbert & Fronek, n.d.). However, the reports of abusive and exploitive treatment of the adopted children prompted the imposition of sanctions to regulate the process. For example, other factors such as the war in the region increased the number of children adopted from Cambodia and Vietnam drawing public attention to children’s’ welfare (Deonandan, Green & Beinum, 2012).
The above mentioned need for In-vitro fertilization opened offshore market during the period. Eventually, both assisted reproduction and sourcing overseas enhanced the commercial offshore surrogacy market. For example, parents organized groups to visit countries across the Southeast Asia, and elsewhere to source the adoptions. As a result, the market shifted faster than the legislative framework for professional practice. Within a decade, inter-country adoption services were common in all states. As a result, the practice was socially acceptable as an alternative family formation (Cuthbert & Fronek, n.d.).
The transparency of commercial offshore surrogacy suppressed legislation. For example, adoptive parents who target poor families create humanitarian motives. However, such motives are inconsistent with surrogacy, since there is not transaction without a pre-existing child. As a result, the government enhanced rules governing international surrogacy arrangements (Tieu, 2009). For example, through local laws and international treaties such as the co-operation in respect of inter-country adoption, the government contributes to the protection of fundamental rights of children. It involves the obligation to prevent the sale, abduction and tracking of children. Additionally, the government is strict about overseas surrogate arrangements to ensure that Australian citizenship provisions do not have loopholes in the adoption and child welfare laws. For example, most foreign arrangements may not qualify for the transfer of legal parenthood under the state and territory law. The reason might be that the arrangements might be commercial and the parties may lack counseling (Deonandan, Green & Beinum, 2012).
To formalize the process, the intended parents of the child need to apply for Australian citizenship by descent or permanent visa for the child. Nonetheless, if the child is a citizen by decent, the intended parents must apply for an Australian passport for the child. The reason is that, a child born overseas does not obtain citizenship by law. However, a person may apply for the citizenship by descent in accordance with the Australian Citizen Act of 2007. Nonetheless, a foreign-born surrogate may apply for citizenship by descent, if he had a parent who was an Australian (Tieu, 2009).
Adoption and surrogate agencies also play a significant role in the process. For example, they advise on the legal requirements and risk presented to both surrogate and intended parents. For example, the risk presented to surrogate mother without adequate information is subject to medical contracts that may jeopardize self-wellbeing. For example, most do not acknowledge that medical care in most agreements is applied to the mother as long as she is the carrier of the child, but after delivery she does not qualify. As a result, non-governmental organizations intervene and provide a platform for making informed decisions and ensure both parties have a fair deal (Smolin, 2007).
Factors that Maintain the System and Potential Vectors of Change
The moral issue surrounding surrogacy and the implications to human rights and laws are significant due to the lack or regulations in foreign countries such as India. Secondly, the lack of legal or medical knowledge is a challenge for the surrogates to have equal bargaining power with commissioning parents. As a result, the wealthy commissioning families control the market and are backed by ineffective laws resulting in the commodification of surrogate parent and children (Cuthbert & Fronek, n.d.).
Secondly, the Australian law allows surrogate arrangements but maintains that they are unenforceable. Just like in the UK, commercial agreements are illegal, and the surrogate is the legal mother of the child while the father status is dependent on the relationship with the mother. As a result of the stringent local regulations, Australian couples opt for overseas options. Another area of concern is the inconsistency in the state policies. Various states have different provisions for surrogate practices. As a result, a significant way to solve the problem would be to deal with the issue on a national level. However, the commonwealth government lacks the power to enact effective national legislation. As a result, it is necessary for the States to refer the legislative powers to the commonwealth government (Smolin, 2007).
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Modern science and medical technology in assisted reproduction are ahead of the social, legal and legislative systems. For example, in recent years, significant reforms have taken place at the state level to address the issue. The reforms focus on the amendment of the laws that previously restricted IVF for surrogacy, and the introduction of state-based systems for the transfer of legal parentage (Tieu, 2009). The approach would make the practice transparent since the government would track transfer of parentage and safety of the children. Additionally, local efforts will reduce demand for overseas sourcing, which reduces legal challenges. After the legislation, the government should partner with foreign government especially when incidents are prevalent. The efforts will ensure that the state develop standards that do not violate human rights (Smolin, 2007).
In recent decades, the practice of surrogacy has faced significant changes, caused by advances in technology and globalization. The practice also elicits moral contentions with legislators both in Australia and internationally, differed in response. The primary reason is the issue of commercialization of the practice. For example, in Australia, decrees on infertility among couples, and the number of adoptable children increased the demand for surrogate children. As a result of the high demand, various agencies commercialize the practice, which is illegal. Nonetheless, the law allows altruistic surrogacy when there is no payment for the delivery of the child from the intended parents. For example, through local laws and international treaties the government contributes to the protection of fundamental rights of children. However, it provides a legal framework for the application of citizenship for non-commercialized surrogates. To address the contentious issue, the government should standardize necessary requirements in various states. Additionally, it should partner with international community in fostering safe and moral practices in surrogacy.