At the World Congress on Human Reproduction in Australia yesterday, Professor Guido Pennings called for a “new” debate on compensated surrogacy. When I initially read the headline I was hopeful that the head of Bioethics at Ghent University was calling for countries to consider compensated surrogacy to address the critical shortage of gestational carriers throughout Australia, Europe and the rest of the world. Instead, it was recycled rhetoric that sounds hopeful but ultimately will do nothing to alleviate the global crisis affecting infertility patients who do not have access to gestational carriers because of regressive restrictions and an obsessive fixation on the evils of compensation:
Speaking at the World Congress on Human Reproduction in Melbourne yesterday, Ghent University head of bioethics Guido Pennings said he did not advocate commercial surrogacy, which was illegal in Australia and most other countries. ”But I do support reimbursement for surrogacy in a regulated environment with clear ethical guidelines and quality controls,” he said. ”This would provide access to such a service for people in their own country and prevent the need for couples to bypass laws at home by travelling to other parts of the world to help achieve a family.”
Professor Pennings said it was estimated that about 50,000 people were involved in reproductive tourism worldwide each year, which could be expensive and risky for those involved. He said reimbursing surrogates for their time and effort was no different to paying participants in clinical trials, where a fixed amount was often paid for clinic visits or procedures.
”If clinical trials are commercial, then it can’t be wrong to have commercialisation of activities concerning the body. So why is surrogacy different?” he said. ”I’m guessing it is not only the commercial aspect but the lack of regulation. There is no doubt that a lot of what is happening in India at the moment is wrong. It might not be wrong because of the commercialisation but the surrounding issues – there being no health insurance and no counselling. The problem may be that the surrogate is not protected in the way we expect.”
Monash IVF clinical research director Luk Rombauts said he knew a couple of Victorian women who had travelled to the US for commercial surrogacy. Victorian law allows only altruistic surrogacy, and a surrogate’s own eggs cannot be used to conceive the child. All parties are required to have counselling and receive legal advice, and arrangements must be approved by a patient review panel. Nine women were involved in surrogacy arrangements in Victoria in 2010-11.
Associate Professor Rombauts said while it was pleasing that surrogacy was legally possible in Victoria, the system did not work for everyone. ”For some women the legislation may be too restrictive or they just can’t find someone who wants to be a surrogate for them. Their only option may be to go overseas and find themselves a surrogate in India or America where we lose control over the safety aspects of their treatment,” he said. ”It appears to be acceptable to provide reasonable recompense for participating in a clinical trial, so is it not reasonable to do the same thing for surrogates? It could make it a bit more accessible in Australia. I think that’s a fair debate to have.”
With all due respect to Professor Pennings, offering expense reimbursement to a surrogate in order to induce her to assist an infertile couple will do nothing to alleviate the crisis that exists internationally. Many countries permit altruistic surrogacy with the ability to reimburse a surrogate for her expenses and it has done nothing to eliminate wait lists that extend as long as a decade in some countries. Among the reasons cross-border reproduction has exploded in countries like India is that there is no shortage of women willing to serve in that capacity. Look no further than the United Kingdom where expense reimbursement is allowed, yet there is such a dearth of surrogates that prospective parents have no choice but to travel overseas in order to start their families.
In fact, Professor Pennings should have looked no further than Australia where he made his remarks. Last year, New South Wales passed the NSW Surrogacy Act of 2010 which made it illegal to proceed with a compensated surrogate arrangement yet still permits altruistic surrogacy. The Act allowed residents of New South Wales (which includes Sydney) to enter into such arrangements as long as they did so by March 1, 2011. What happened? There was a flood of NSW residents on flights to the United States trying to enter into a contract with a surrogacy agency (or surrogate) to beat the March 1st deadline. For the first couple of months of 2011, my schedule was packed with panicked Australians seeking legal assistance to avoid the looming deadline — even though they could have proceeded with an altruistic arrangement. Ironically enough then, the very tact that Professor Pennings is suggesting will do little to address the problems he has identified.
So while I would welcome the debate, it will neither be “new” nor fruitful. If you really want to solve the international crisis that exists, you need to look at the American compensation model combined with thoughtful regulations and decide whether such a system is socially and morally palatable. Anything short of that is the functional equivalent of rearranging the deck chairs on the Titanic.