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The rights of children must come first in international surrogacy

By Helen Freris - posted Friday, 10 October 2014

The recent case of Baby Gammy has drawn attention to the ethical pitfalls posed by international surrogacy. Significant among these is the need to refocus discussion of the issue towards the rights and best interests of children.

Few reliable statistics exist, but it is generally agreed that the number of children born through surrogacy is increasing, due to greater acceptance of assisted reproductive technology and a drop in the number of children available for adoption.

Unlike international adoption, which is highly regulated in Australia, and whose goal is to provide a family for children unable to be cared for in their own country, international surrogacy operates for the most part in a nebulous legal landscape. Offshore surrogacy agencies and fertility clinics have been established as profit-making ventures for the sole purpose of supplying children to involuntarily childless couples and individuals.


We need to focus squarely on the rights of children born through surrogacy arrangements, because they are not only longed for by their commissioning parents, but also individuals in their own right, members of our society with inherent rights set out in the UN Convention on the Rights of the Child (CRC).

The CRC provides that, among other rights, children have the right to grow up in a family and to know and preserve their identity and their relationships with their family of origin. The CRC also upholds children's entitlement to safety and security and to physical, emotional, psychological and spiritual wellbeing.

Although intentionally created to become part of the family of their commissioning parents, it is important not to view children born through surrogacy merely as the outcomes of contractual arrangements, created by technology and transnational labour in exchange for remuneration. They, like other children, are individuals, separate to their parents and with inherent rights of their own. In the words of Kahlil Gibran:

Your children are not your children.
They are the sons and daughters of Life's longing for itself.
They come through you but not from you,
And though they are with you yet they belong not to you.

These children – and their safety and wellbeing – are the responsibility not only of their commissioning parents, but of all those involved in their creation, and of the society into which they are born.

One practical way to exercise this responsibility is to ensure surrogacy programs are operated so that children have access to accurate birth records and both non-identifying and identifying information regarding donors and surrogates, with appropriate counselling and support for all parties. Only with such arrangements can the burden of secrecy, brought about by the anonymity of donors and surrogates, be lifted from the lives of these children.


Australia's recent experience of the impact of forced and closed adoption practices has much to teach us. Past practices, in which access to adoption records was denied and mothers were coerced into relinquishing their newborn children for adoption, have taken a heavy toll on the lives of many Australians, including those adopted internationally into this country.

My colleagues and I at ISS Australia know the impact of this secrecy and the consequent search for identity, as we assist adoptees to trace their origins and reunify with original family members on a daily basis. Adoptees have often shared the importance of knowing about the circumstances of their birth, and the names and some of the history of their original family.

Even if an adoptee experienced a happy childhood in their adoptive family, and has no desire for contact with their original family, the sense of completeness in finally removing the veil from their origins can be profound. For surrogate-born and other donor-conceived adults, practical considerations such as having access to genetic or medical information on a donor or biological parent are critical. The use of anonymous donors or surrogates arguably continues the mistakes of past adoption practice, potentially leading to feelings of confusion, grief or disconnection by the donor-conceived or surrogate-born person.

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About the Author

Helen Freris is the National Services Manager of International Social Service Australia. She is a qualified social worker and accredited Family Dispute Resolution Practitioner. She practices in the areas of cross-border family separation, international child welfare and post-adoption tracing and reunification.

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