The price of parenthood
By Lisa Pryor
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Before the woman vanished from the story, long before the matter came before a court, a TV crew caught a glimpse of her dark, serious face. She is wheeled into the operating theatre, hand across the top of her pregnant belly. The green gown is cast aside, belly swabbed with dark fluid. She leans forward for the doctor, who injects anaesthetic between her vertebrae. Through layers of muscle, fat and skin, two girls are lifted up, out of her body, and taken to their dads.
The woman was never named in the footage, which was filmed in India last year. When the case came before the Family Court of Australia this year, she was given a pseudonym. What we do know is that this Indian woman was paid to carry two embryos conceived with the eggs of an anonymous donor and the sperm of one of the dads, a gay couple from Melbourne.
The woman did not get to meet the babies, the dads did not get to meet the woman. These were the rules of the clinic in Mumbai, rules the dads were not entirely comfortable with. They only received a small amount of information about the surrogate. They would have liked to have kept in contact. Most of all they wanted everything to be ethical. As one of them explained, “No one wants to build their family on the pain and suffering of someone else.”
After the birth the dads sent a solicitor through the suburbs of Mumbai to find the woman. And that was how they discovered the address she had given didn’t exist.
In Australia the laws of surrogacy have grown into a tangled mess. Parents raising their own genetic offspring, with the full consent of the surrogate mother, can find the law of their state considers the legal parents of the child are actually the surrogate mother and her male partner, with no easy way to transfer parentage. Parents are left with the impractical option of spending years trying to legally adopt their own flesh and blood or applying to the Family Court for parenting orders, which gives them something less than full parentage, lasting only until the child reaches 18 years.
It was parenting orders the dads sought when they filed an application with the Family Court in June. Normally the surrogate mother would be called upon to share her perspective.
Miranda Montrone, a psychologist, family therapist and infertility counsellor who has spent 15 years counselling people through the surrogacy process, says that surrogate mothers may grieve for a baby they have relinquished even when they have completed their own families and freely agree to act as a surrogate. “Whilst their head is ready to say ‘I don’t want this baby’, their body doesn’t know it. This does not mean that they change their minds about relinquishment of a baby born through surrogacy, but they can go through a physiological grieving and they don’t know what it is.”
Sometimes the grief may not be felt straightaway. In the months after delivery the surrogate may “just feel the need for a little bit of a hug attack”. The circumstances following the birth can help minimise the grieving process. “In Australia there is usually an ongoing connection between surrogate and intending parents and so they go round, they hold the baby, the body knows that it is well, there is a level of reassurance the surrogate mother’s body feels,” Montrone says.
The woman who gave birth to the twins may have felt reassured, or she may have felt completely differently. We have no way of knowing. She was never contacted about the court case because, as Justice Paul Cronin of the Family Court explained in his judgement, published under the pseudonyms Wilkie and Anor & Mirkja, the woman gave an address that did not exist.
Justice Cronin found there was no reason to find another way of serving the woman with court papers. “The usual ways of trying to find an Indian family would not apply in this case because the applicants did not meet the surrogate mother. There are no indications as to her status or intellectual capacity that would enable me to find that a notice by way of advertisement in a newspaper would bring the application to her attention.”
By this stage the girls were 14 months old and had not had contact with the woman since birth. “On that basis, it is reasonable to assume that [she] is not interested in the proceedings and would not attend even if she was properly served.” He ultimately concluded it would be in the girls’ best interests to continue living with their dads. He granted them the parenting orders they sought.
The states are working together to harmonise the laws across Australia and make it easier for full parental status to pass to parents who are raising children, so long as the surrogate mother gives her informed consent. But these reforms are limited to altruistic surrogacy arrangements made within Australia; they do little to clarify the position of children conceived through overseas commercial surrogacy arrangements, which would be illegal in Australia.
There are aspects of cases such as the one involving the twins that trouble Jenni Millbank, professor of law at the University of Technology, Sydney. “I’m concerned that in some international cases, because parents are excluded from the new state laws to transfer parental status, they have to go to the Family Court, which is not suited to this kind of situation and doesn’t have the same safeguards built in, for example to ensure the birth mother’s informed consent to the transfer of parentage,” she says. Millbank also questions whether Australian surrogacy laws are achieving their stated aims of preventing the exploitation of surrogate mothers and the commercialisation of reproduction, as well as the protection of the interests of children. She argues that the laws simply export the exploitation and commercialisation elsewhere, as evidenced in the increasing incidence of international surrogacy.
While conceding there is no perfect answer, she would like to see surrogacy become more possible within Australia, where it could happen with more oversight and less of a power imbalance. And she questions the distinctions drawn between altruistic and commercial arrangements. She points to the UK, where commissioning parents are allowed to pay the surrogate reasonable wages. “I think in Australia it is interesting this idea that not to exploit a woman you have to pay her nothing at all.”
The dads travelled back to India in September. They raced there to meet the latest addition to their family, a son born five weeks premature. Photographs capture the beaming fathers with their tiny boy. Now they are home in Melbourne, one dad covering the night shift with the newborn, while the other gets up early with the energetic toddlers.
They did things a little differently this time round. They chose a clinic in Delhi, one with a doctor trained in the UK. The egg came from an “academic donor”. “For me it is not that they are smarter than the women who are poor,” says one of the dads. “It is just opportunity as far as I am concerned … she could make a more informed decision because of her education.”
But they didn’t meet the surrogate this time either. They did not want to one day tell the girls they had met their brother’s surrogate but not theirs.
So often the media coverage of the case has focused on all that is new, futuristic even, about two gay fathers raising babies. But if there is anything troubling about this case it has nothing to do with what is new about the scenario, and everything to do with what is old-fashioned about surrogacy as it is practised in India – the echoes of our own history in which babies seemed, for a time, to be so easily and neatly signed away from the women who gave birth to them.