CANBERRA COUPLE ACCESS COMMERCIAL SURROGACY OVERSEAS, DESPITE PRACTICE BEING ILLEGAL IN ACT

The Weekend Australian recently featured on its front page a story about the journey Canberra couple Emma and Alex Micallef have undergone to commission a baby in Ukraine. It detailed the obstacles they have experienced along the way, including the logistics of managing such an arrangement in the midst of the country’s ongoing invasion at the hands of Russia (“Miracle of life delivered in a war-torn land far away”).

However, what is interesting to note about the story (and not mentioned in the newspaper article) is that entering into an overseas commercial surrogacy arrangement is illegal in the Australian Capital Territory, the jurisdiction where the couple currently reside. According to the Australian government’s smart traveller website:

“It is illegal for residents of the ACT, NSW and QLD to enter into commercial surrogacy arrangements overseas. Doing so could lead to arrest and jail in Australia.”

The process as described in the news article indicates that the Micallefs, with the assistance of non-profit organisation Growing Families, have entered into a commercial surrogacy arrangement overseas:

“The commercialisation of the process – very different from the altruistic approach in Australia – meant the baby would be legally the Micallefs’ from birth and they would not have to go through bureaucratic processes to adopt their daughter. There is no court decree, no adoption procedure, and the gestational mother, who is paid about €15,000 to €20,000 ($22,200 to $29,640), which is many times the Ukrainian minimum wage, has no legal right.”

The invasion of Ukraine by Russia has made conditions particularly hazardous for those involved, especially the women carrying babies on behalf of others in a time of war, many of whom already have small children and families of their own.

Former adoption lawyer Julia Osiyevska, who heads up “New Hope Ukraine”, the company in the Ukraine engaged to facilitate the Micallef’s surrogacy arrangement, has described the conditions facing the surrogates, against the backdrop of the war engulfing the country:

“They are brave ladies. They were all calm and while everyone was stressed about not knowing what will happen, the ladies were simply preparing to move; I think the intended parents were more concerned and very worried.

“There was a scramble to get the pregnant women to a safe place. That meant somewhere outside the country, but because of the legalities surrounding surrogacy, the women had to return to Ukraine territory, in tow with the intended parents, to give birth. The Micallefs paid for Svetlana and her three children to relocate to neighbouring Moldova and she joined eight other pregnant women and their children who got on buses, leaving their men behind to fight in the war.

“Then about four weeks ago, the Micallefs arrived in Ukraine to spend the last few days with Svetlana and her children, all of whom had crossed back into southern Ukraine ready for the birth.

“When Svetlana’s early-morning labour on May 25 coincided with air raid sirens blaring across Chernivtsi, the two women raced to the hospital, breaking the overnight curfew and taking with them the bedding, toiletries, medical supplies and towels they may need, while Mr Micallef had to wait outside.”

Ms Micallef herself describes just how dangerous the conditions were for Svetlana, at the height of the conflict:

“Hospitals were not off limits for the Russians; hospitals were actually targets. We saw that with the attack in Mariupol on a maternity hospital. Svetlana was sleeping away from the windows in a thick coat (so that she wouldn’t be injured from flying broken glass from a missile attack) but we weren’t comfortable with her being in that situation.”

Svetlana’s labour ended up being a difficult one:

“Valerie was born a few hours later, weighing 3.2kg and 53 cm long, after a difficult labour that required an emergency Caesarean.”

The media report does not go into detail about the difficulties facing Svetlana who now needs to manage six weeks of rest following her emergency Caesarean whilst simultaneously caring for her own three children, all the while separated from her husband due to the war effort.

The article also doesn’t divulge whether Svetlana was warned about the risks to her own health in carrying a baby for others before entering into the agreement. It does state that this was her second surrogacy pregnancy, but the first that she had carried out during a pandemic.

In fact, the risks to the health of the mother and the baby in surrogacy arrangements are documented and can be extremely serious, and in some cases, fatal:

“Studies show that women pregnant with donor eggs, very common in surrogate pregnancies (the definition of gestational surrogacy), have a more than three-fold risk of developing pregnancy induced hypertension and pre-eclampsia.

“Lupron use in preparing a gestational surrogate to receive transferred embryos has been documented to put a woman at risk for increased intracranial pressure.”

(Center for Bioethics and Culture Network)

There have been confirmed deaths of surrogate mothers in countries overseas, including in the United States.

The story of Jaida, the daughter of a woman who died after giving birth to twins as part of a surrogacy arrangement in the United States, demonstrates the consequential trauma that surrogacy can inflict on others besides the women involved, including biological children of surrogates themselves, who are left to pick up the pieces when things go wrong. Tragically, Jaida’s mother died three weeks after delivering healthy babies for the commissioning couple. Jaida is now extremely critical of the medical profession who she feels did not properly inform her mother about the “potential complications that could come with surrogacy”.

“The medical system failed her. She wasn’t properly warned of what could happen. the [surrogacy] agency she went through really made it sound like it was gonna be sunshine and rainbows.”

It’s not just physical harm either. The practice can bring with it significant psychological trauma as documented in Broken Bonds: Surrogate Mothers Speak Out, which contains stories of numerous women from around the world who experienced trauma or psychological harm as a result of their surrogacies and who now regret their involvement in these arrangements. One such example is Britni, “who is seeing a psychiatrist and taking anti-depressants and anti-anxiety medications, along with birth control medication to regulate her hormones due to stress and irregular bleeding.” Another is Marie Anne who “now has PTSD and postpartum psychosis, including severe mood swings, depression, suicidal thoughts, anxiety and daily panic attacks. She deeply regrets her surrogacy.”

In 2016, a national parliamentary inquiry into surrogacy recommended that the practice of commercial surrogacy remain illegal in Australia, as “even if a regulated system of commercial surrogacy could be implemented, the risk of exploitation of both surrogates and children remains significant”. It is reasonable to presume that such risk is intensified in countries like Ukraine where poverty and other socio-economic factors make women particularly vulnerable to exploitation.

The circumstances described in this story clearly indicate that an overseas commercial surrogacy arrangement has been entered into by a couple living in the Australian Capital Territory. The question that must be asked is why is the law banning this practice not being enforced?

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