SURROGACY, LAW AND HUMAN RIGHTS This book on the developing field of surrogacy law, across a number of jurisdictions, tackles an intricate and sensitive legal subject. It is one that has grown out of modern biological technology as it interacts with new social attitudes and values. This is a legal work. But, inevitably, the authors address the contested ethical positions that sometimes stand in the way of sensible law reform. The book is timely, well written and interesting. The authors are well qualified and engaged with their topic. This is cutting-edge law: at a new legal frontier where universal human rights law, conflicting religious and moral positions and powerful feelings of human love come together in vigorous dialogue. The Hon Michael Kirby AC, CMG, former Justice of the High Court of Australia This collection is a timely addition to the global debates on surrogacy, drawn from a uniquely Australian perspective. The wide range of views and recommendations for reform in Surrogacy, Law and Human Rights make it a very valuable contribution to the burgeoning academic ‘dissensus’ on the role of law in responding to the challenges posed by domestic and transnational surrogacy. Professor Jenni Millbank, University of Technology, Sydney, Australia This page has been left blank intentionally Surrogacy, Law and Human Rights Edited by PAULA GERBER Monash University, Australia KATIE O’BYRNE Doughty Street Chambers, UK First published 2015 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © Paula Gerber, Katie O’Byrne and the contributors 2015 Paula Gerber and Katie O’Byrne have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library The Library of Congress has cataloged the printed edition as follows: Surrogacy, law and human rights / edited by Paula Gerber and Katie O’Byrne. pages cm Includes bibliographical references and index. ISBN 978–1–4724–5124–8 (hardback) 1. Surrogate mothers – Legal status, laws, etc. 2. Surrogate motherhood. 3. Human rights. 4. Surrogate mothers – Legal status, laws, etc. – Australia. 5. Human rights Australia. I. Gerber, Paula, editor author. II. O’Byrne, Katie, editor author. K700.S87 2015 346.01’7–dc23 2014049973 ISBN: 9781472451248 (hbk) ISBN: 9781315611372 (ebk) Contents Notes on Contributors vii Foreword by Gillian Triggs xi 1 Surrogacy and Human Rights: Contemporary, Complex, Contested and Controversial 1 Katie O’Byrne and Paula Gerber 2 Surrogacy: A Personal Perspective 9 Anthony Wood 3 Theoretical Approaches to Human Dignity, Human Rights and Surrogacy 13 Kate Galloway 4 Through the Looking-Glass: A Proposal for National Reform of Australia’s Surrogacy Legislation 31 Tammy Johnson 5 Extra-Territoriality and Surrogacy: The Problem of State and Territory Moral Sovereignty 65 Anita Stuhmcke 6 Souls in the House of Tomorrow: The Rights of Children Born via Surrogacy 81 Paula Gerber and Katie O’Byrne 7 The Surrogate in Commercial Surrogacy: Legal and Ethical Considerations 113 Sonia Allan 8 Recognition of Parentage in Surrogacy Arrangements in Australia 145 Alexandra Harland and Cressida Limon 9 Surrogacy in India: Strong Demand, Weak Laws 167 Normann Witzleb and Anurag Chawla vi Surrogacy, Law and Human Rights 10 Surrogacy: American Style 193 Richard F. Storrow Index 217 Notes on Contributors Sonia Allan has undergraduate and postgraduate qualifications in psychology, law and public health. She is a Senior Lecturer in Law at Macquarie University in Sydney, Australia. She previously held positions at the University of Melbourne, as a Senior Fellow in Law; at Georgetown Law Center, Washington D.C. as a Global Health Law Fellow; and at the Victorian Law Reform Commission as a legal research and policy officer. She is an expert on the regulation of assisted reproduction, surrogacy and related matters. She has published in leading national and international journals and contributed to federal and state government inquiries on these matters. In 2011, she was awarded a Churchill Fellowship for her work on donor conception. Anurag Chawla is a practising lawyer in the Supreme Court of India and the High Court of Delhi with more than three decades of professional experience in civil and commercial practice. He specialises in legal issues related to surrogacy and assisted reproductive technology in India. His firm, Surrogacy Laws India, based in New Delhi, provides services in the area of surrogacy law in India. He and his team have assisted parents from other jurisdictions with surrogacy arrangements in India. Kate Galloway is a Senior Lecturer and Director of Teaching and Learning at the School of Law at James Cook University in Queensland, Australia. She was previously a practising solicitor in property law, commercial law and native title. Her research interests lie in property law, feminist legal theory and social justice. She has a particular interest in theorising the legal conceptualisation of the human body – as property or otherwise – and the consequences that flow from this, especially for women. Paula Gerber is an Associate Professor in the Faculty of Law at Monash University, Melbourne, Australia and a Deputy Director of the Castan Centre for Human Rights Law. She is an expert in the law pertaining to children’s rights, which she both teaches and researches. She has published numerous peer-reviewed journal articles, edited collections and monographs in the human rights field, including most recently Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (2013, Thomson Reuters); Paula Gerber, Understanding Human Rights: Educational Challenges for the Future (2013, Edward Elgar); and Paula Gerber and Adiva Sifris (eds), Current Trends in the Regulation of Same-sex Relationships (2010, Federation Press). viii Surrogacy, Law and Human Rights Alexandra Harland is a judge of the Federal Circuit Court of Australia. Before being appointed to the Bench she practised in family law for 16 years in private practice and with Legal Aid New South Wales. She has taught family law at the University of Sydney. She is the lead author of the family law text book Family Law Principles (Thomson Reuters, 2011). She has published several peer-reviewed journal articles and written and presented numerous papers on a variety of family law topics, including surrogacy issues. She is undertaking a Masters of Law at UTS researching international surrogacy. She is currently working on the second edition of Family Law Principles. Tammy Johnson is an Assistant Professor at Bond University in Queensland, Australia. A sole practitioner for a number of years, Tammy eventually sold her practice to pursue her academic interests. Tammy practised in the areas of property law, commercial law and succession and estate administration. In 2008, Tammy received her Master of Laws (Corporate and Commercial Law) and she is now close to completing her PhD at Queensland University of Technology, Australia on the topic of commercial surrogacy in Australia. Cressida Limon is a Lecturer at the School of Law, University of Western Sydney, Australia. She was previously a Research Fellow at the University of Melbourne where she worked with the Family Law Council of Australia on its recent inquiry into parentage and the Family Law Act 1975 (Cth). Cressida has research expertise in the fields of biological anthropology, science studies and feminist legal theory. Cressida has a particular interest in how concepts of the natural and the technical are constructed in law and legal theory. Katie O’Byrne is a barrister at Doughty Street Chambers, London, United Kingdom, specialising in human rights, public law and international law. She has previously practised as a solicitor at Freehills and was an associate to Justice Kenneth Hayne AC of the High Court of Australia. She has also been a Lecturer at Melbourne Law School and a Research Assistant at Monash University Law Faculty, Australia. In 2011–12 she was a David M Livingstone Scholar in the LLM at the University of Cambridge, where she completed a thesis examining transgender recognition law. She has published in the areas of refugee law, children’s rights and the relationship between law and gender. Richard F. Storrow is Professor of Law at City University of New York. He brings human rights and social justice perspectives to his comparative research on the regulation of assisted reproduction. His recent articles have explored the legal dimensions of cross-border reproductive care, the use of the proportionality principle by European courts reviewing restrictions on assisted reproduction, and the resurrection of illegitimacy classifications in the regulation of international commercial surrogacy. During the fall of 2010, he was a Fulbright scholar to Spain Notes on Contributors ix where he conducted research on the development of the Spanish law of human assisted reproduction. Anita Stuhmcke has had a long-standing interest in the legal regulation of surrogacy in Australia. She is a Professor in the Law Faculty of the University of Technology Sydney, Australia. Her scholarship in this area explores social exclusion and public access to reproductive services, especially with respect to surrogacy. Anita has contributed to law reform inquiries across several Australian jurisdictions on this issue. The central premise of her research is to conceptualise the ways in which law operates as a continuum of effectiveness, the basic argument being that black-letter law is just one regulatory option available to policy-makers. Normann Witzleb is an Associate Professor in the Faculty of Law at Monash University, Melbourne, Australia. Prior to joining Monash University in 2008, he worked at the University of Western Australia and the European University Viadrina Frankfurt (Oder), where he also obtained his PhD. Normann is dually qualified in German and Australian law. He has published extensively on the law of obligations and the law of privacy but also maintains an active research interest in comparative family law. Anthony Wood lives in Melbourne with his partner, Lee Matthews, and their two children. He is a partner at Herbert Smith Freehills, where he is the Section Head of that firm’s Employment group. He is a member of the Herbert Smith Freehills Diversity Steering Committee and convenor of the firm’s LGBT network. He holds Bachelor of Commerce and Law degrees from the University of Melbourne (1986). Tony and his partner were one of the first Australian couples to successfully pursue international surrogacy and their story was chronicled in the Australian SBS documentaries Man Made: The Story of Two Men and a Baby (2003) and Two Men and Two Babies (2008).