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Stuhmcke, Anita --- "For Love or Money? The Legal Regulation of Surrogate Motherhood" [1995] MurdochUeJlLaw 29; (1995) 2(3) Murdoch University Electronic Journal of Law


Author: Anita Stuhmcke
School of Law, University of Western Sydney
Issue: Volume 2, Number 3 (December 1995)

1. Introduction

In the last decade, five Australian jurisdictions have introduced legislation to regulate the practice of surrogate motherhood - Victoria,[1] South Australia,[2] Queensland,[3] Tasmania[4] and the Australian Capital Territory[5].  While the legislation is not uniform, each jurisdiction distinguishes between the concepts of paid and unpaid surrogacy.  In the majority of jurisdictions, the legislation treats paid surrogacy more punitively, attaching criminal sanctions to its practice while leaving unpaid surrogacy unregulated. In recent years, this distinction has become increasingly marked.  For example, in Victoria in 1993 the Victorian Cabinet recommended that unpaid surrogacy be legalised[6] and the Australian Capital Territory legislature allowed parties to an altruistic surrogacy agreement to seek professional assistance in relation to the formation of such an arrangement.[7]

This article questions this growing legislative perception that surrogate motherhood falls into two identifiable categories - 'altruistic' where no money is paid to the surrogate mother for her "services" and 'commercial' where money is paid.  The article commences with an outline of the practice of surrogate motherhood, it then analyses the legislation which regulates the practice in each jurisdiction and evaluates the legislative categorisation of surrogacy through a comparison of the objections to com mercial and altruistic surrogacy.  Finally, the ramifications which the legislative distinction between commercial and altruistic surrogacy has for women, reproduction, parenthood and family are considered and legislative reform is advocated.

2. The Practice of Surrogate Motherhood

In our society infertility has historically been seen as a problem which merits treatment.[8] Surrogate motherhood provides some couples with their only hope of raising a child genetically related to at least one of them. Surrogate motherhood describes a n arrangement where a woman (the surrogate mother) agrees to become pregnant and bear a child for another person or persons (the commissioning parents) to whom the custody of the child will be transferred directly after birth.

Surrogate arrangements may be made with or without payment to the surrogate mother. 'Commercial surrogacy' is the term used to describe an agreement where payment is made to the surrogate mother.  'Altruistic surrogacy' is the term used to describe the in formal arrangements where no money is paid to the surrogate mother. Such altruistic agreements are often referred to in the literature as being made between friends and relatives.  The initial demand for surrogacy is likely to come from women, or the part ners of women who are physically incapable of pregnancy, the most obvious candidates being women who have had a hysterectomy or a history of spontaneous abortion. Other medical conditions such as kidney disease or multiple sclerosis[9] make pregnancy dan gerous and therefore may leave a woman infertile for practical purposes.[10] Further, it has been suggested that some women may desire a surrogate to bear their child for aesthetic or career reasons.[11] In practice[12] two methods of surrogate motherho od are employed:

A. A woman (the surrogate mother) provides her oocytes for in vivo fertilisation for insemination by the sperm of a donor (usually the commissioning parent).  This insemination may be natural or artificial.[13] Upon birth, custody is surrendered to the s perm donor. This has been termed "partial" surrogacy since the child is related to one of the commissioning parents - the biological father and the surrogate mother.  This is the most common method of surrogate motherhood.[14]

B. A woman's ovum is fertilised in vitro, the embryo is transplanted into the uterus of the surrogate mother and upon birth, the child is surrendered to the ovum donor.  This procedure of utilising in vitro fertilisation ("IVF") has been termed "full" sur rogacy since the commissioning parents may have provided all the genetic material for the child.  IVF surrogacy is comparatively rare.[15] For example, the first recorded birth in Australia took place in 1988.[16] Between 1989 and 1991 eleven requests fo r IVF surrogacy were made to the Monash IVF programme[17] and in 1994 a failed attempt at such a procedure in Victoria was reported.[18]

It is only in the last 20 years that surrogate motherhood has increasingly become an issue of national and international public debate.[19] Factors such as the growth of infertility in modern society,[20] coupled with the declining number of children ava ilable for adoption,[21] the development of the surrogacy contract and commercial surrogacy agencies in the United States in 1976[22] and the introduction of new technologies such as IVF which can be combined with surrogate motherhood, have resulted in in creasing publicity and public interest in the formation of such agreements between infertile couples[23] and surrogate mothers. Although there has been much publicity surrounding the practice of surrogacy the incidence of surrogate motherhood in Australia is not known, although it has been estimated that between 1977 and 1987 "about 40 surrogate births would have occurred in Australia."[24]

It is important to note that much of the language in this area has been criticised and is used in this article only due to its widely accepted usage.  For example:

A. The term "surrogate mother" as applied to the gestating mother is a misnomer since the social or commissioning parents could equally be regarded as surrogates as in most Australian jurisdictions the woman giving birth to the child is deemed or presume d at law to be the mother. Since a "surrogate" according to the Macquarie Dictionary is a "substitute" a woman cannot be the surrogate mother of a child she bears.

B. The terms "partial" and "total" surrogacy reduce motherhood to an equation of gametes contributed and presume that providing original genetic material makes one a mother, while nurturing an embryo in one's body and giving birth does not.[25]

C. The terms "altruistic" and "commercial" surrogacy contain ambiguity. Firstly, it is unclear as to when an altruistic arrangement becomes commercial - for example an arrangement may include payment of the surrogate mother's medical, travel and home-help expenses yet remain classified as an altruistic arrangement.  Secondly, the distinction between the terms has been questioned.[26] The use of the term "altruistic" implies that these arrangements are done purely for love and are therefore somehow more a cceptable than an arrangement entered into for commercial reasons. However, the fact that the parties enter into a surrogacy agreement which provides for payment to the surrogate mother does not necessarily mean that the motivation behind the agreement is not altruistic.  Similarly, the fact that there is no payment does not necessarily imply that the motivation for surrogacy is altruistic.[27] Finally, it has also been argued that such acts can never be termed altruistic as the women who become surrogat e mothers do this as a result of a lack of self confidence and subordination.[28]

3. The current legislation

There have been 10 committees of inquiry in Australia into surrogacy and related reproductive technologies.[29] All but one of these committees[30] either "expressed grave reservations about the practice or recommended that it be prohibited".[31] It is t herefore not surprising that the legislation regulating surrogacy, although not uniform, does contain similarities.  In particular the legislation in each jurisdiction:

A. prevents advertising, thus effectively reducing the spread of people to whom surrogacy is available and preventing the emergence in Australia of commercial surrogacy agencies such as those which exist in the United States;[32] B. renders surrogate arrangements unenforceable, with the result that the surrogate mother to either a commercial or an altruistic agreement cannot be required to relinquish custody of the child to the commissioning parents;[33] and C. applies not only to the situation where a woman becomes pregnant pursuant to a surrogacy agreement but also to the situation where a woman is already pregnant and then agrees to give the child away.[34] Additionally, the legislation distinguishes between the concepts of altruistic and commercial surrogacy as explained below.

3.1 Victoria

In Victoria, the Infertility (Medical Procedures) Act 1984 ("the Act") renders both commercial and altruistic surrogacy arrangements void and therefore unenforceable.[35] The Act distinguishes between commercial and altruistic surrogacy in that crimina l penalties are imposed upon the parties to a commercial surrogacy agreement[36] while parties to an altruistic agreement are not penalised.[37]

Although altruistic surrogacy arrangements have not been specifically prohibited by the Victorian legislation, the Act together with other pieces of legislation combine to render the successful completion of such an arrangement difficult. For example, in relation to IVF surrogacy, s13(3)(d)(i) of the Act states that an IVF procedure must not be carried out unless the recipient is "unlikely to become pregnant as the result of a procedure to which this section applies".  The strict interpretation of this se ction means that the surrogate mother must be infertile to receive IVF treatment and therefore precludes fertile women from acting as surrogates.[38] Further, if parties choose to employ artificial insemination to achieve their desired ends they will run into the unintended effect of s 10C of the Status of Children (Amendment) Act 1984 (Vic) which deems the resulting child of a surrogacy arrangement to be that of the surrogate mother and her husband (if applicable) while denying the relationship betwe en the child and the commissioning sperm donor.[39] As a consequence, the commissioning couple must rely upon the relevant adoption and guardianship and custody statutory provisions to achieve a successful surrogacy agreement.  This becomes complicated b y the strict requirements of the Adoption Act 1984 (Vic) which prohibits private adoption and discourages adoption by relatives.[40] However, it is frequently suggested that it is relatives who are most likely to participate in an altruistic surrogacy arrangement.[41]

The situation is further complicated because the distinction between commercial and altruistic surrogacy is undefined in the legislation.  For example, in the case of an 'altruistic' surrogacy arrangement, should the woman who has agreed to be the surroga te mother be allowed health care costs, home help throughout the pregnancy or, alternatively, no assistance whatsoever?

Section 30(2) of the Act states that a person shall not:

"(b) make, give or receive, or agree to make, give or receive, a payment or reward for or in consideration of the making of a contract, agreement or arrangement under which a woman agrees to act as a surrogate mother; or (c) receive or agree to receive a payment or reward in consideration for acting or agreeing to act as a surrogate mother."

On a literal interpretation, even compensation for medical expenses may be caught under these provisions.  On a broader interpretation, it may be argued that these provisions aim to prohibit the payment for the use of reproductive services and thus payme nts not made directly for such services may not be penalised under the Act.  Indeed the Waller Report states that in an altruistic surrogacy agreement an arrangement that the surrogate mother's "medical, hospital and travelling expenses be paid would not result in [the arrangement] being labelled as commercial".[42] However, the legislation in its present form remains ambiguous on this point.

3.2 The Australian Capital Territory

In the Australian Capital Territory the Substitute Parent Agreements Act 1994 ("the Act") renders substitute parent agreements[43] void.[44] It is an offence for anyone who does not intend to be a party to a substitute parent agreement to procure anothe r person to enter an agreement with a third party.[45]

The Act clearly distinguishes between commercial substitute parent agreements and "non-commercial substitute parent agreements".[46] A "non-commercial" or altruistic agreement includes those agreements under which the expenses of the surrogate mother are paid.[47] The Act distinguishes between commercial and altruistic surrogacy by making it an offence for persons to enter into a "commercial substitute parent agreement"[48] while leaving altruistic agreements without penalty. Additionally, if advertis ing is made with respect to a commercial substitute agreement the penalty is a fine or a period of imprisonment or both.  If the advertising is made for the purposes of altruistic surrogacy the penalty is a fine only.[49] Perhaps most importantly, the Ac t further distinguishes between commercial and altruistic surrogacy by making it an offence for a person to knowingly provide any professional or technical services to a woman to facilitate a pregnancy with respect to the former[50] while leaving the latt er unregulated.

In essence commercial surrogacy is considered a criminal act in the Australian Capital Territory while altruistic surrogacy is allowed to proceed.  One reason for so doing was stated in parliamentary debate by Mrs Carnell:

"Provided arrangements for non-commercial surrogacy are between people who know each other well; who have a long standing relationship, that is often sisters, cousins etc; who trust each other and who have a clear commitment to each other's well being; an d who have the support of their families and who are informed about the procedures and the consequences and who are willing to participate, in other words, it is their consent, such altruistic surrogacy should be allowed to proceed".[51]

This is not to imply however that the Australian Capital Territory has explicitly condoned such agreements.  The Act states that altruistic surrogacy arrangements will be unenforceable in a court of law. This means that while entering an altruistic surrog acy agreement is not an offence, the agreement is legally ineffective and the surrogate mother will be the legal mother as if no agreement had been made.[52] What is important to note however, is that the Act does explicitly allow and, to an extent, enco urages the formation of such arrangements.  The penalties for advertising for altruistic surrogacy are not severe[53] and technical services may be provided to parties to such an arrangement, including medical services and legal advice.

However, while the effect of the Act is to allow altruistic surrogacy agreements to proceed, practically any such agreements will face hurdles. More specifically, the current law in the Australian Capital Territory indirectly raises impediments to the rea lisation of substitute parent agreements.[54] For example, s 5(1) of the Artificial Conception Act 1985 (ACT) provides that where a married woman gives birth to a child as the result of artificial conception (either artificial conception by donor or IVF ) with the consent of her husband, the donor of the gametes will have no legal relationship with the child and the husband is presumed to be the father of the child.  Therefore the commissioning parents will have no claim over the child in such an agreeme nt.  Additional impediments arise following the birth of the child when issues such as the names on the birth certificate and adoption arise.  For example, under s 19 of the Adoption Act 1993 (ACT) all adoption applications are subject to review by an a pproved adoption agency before a grant of adoption by the Court and in any proceedings relating to a child born from a surrogacy agreement "the welfare and interests of the child born as a result of a pregnancy that was the subject of the agreement shall be regarded as the paramount consideration".[55]

3.3 South Australia

In South Australia a surrogacy contract[56] and a procuration contract[57] are illegal and void.[58] The Family Relationships Act 1975 (SA) ("the Act") distinguishes between altruistic and commercial agreements, making it an offence to be involved in a commercial surrogacy agreement,[59] while not penalising parties to an altruistic surrogacy agreement. One reason for this, as stated in parliamentary debate by the Honourable R J Ritson, is:[60]

" cannot legislate to prevent private agreements amongst people to arrange for the pregnancy and birth of a child and for a friend to have custody of that child as if that person were the parent.  I guess that that will go on to a certain extent, bu t we need to prevent some of the distressing and unhappy litigation that has occurred in other countries and prevent, in particular, the transatlantic trade which has occurred, where agencies in the United Kingdom have advertised surrogacy services and pe ople from North America have crossed to England to take advantage of those services."

As in other jurisdictions, parties to an altruistic surrogacy agreement in South Australia, face unintended obstacles to the successful completion of such an arrangement.  For example, s 10(d)(1) of the Act states that where a child is born to a married w oman as a result of the artificial insemination by donor, and her husband has consented to the procedure, the woman's husband is presumed to be the child's father.  This means that even if the commissioning couple produced the sperm and are therefore biol ogically connected to the child they will be prevented from asserting any right to parenthood.

3.4 Queensland

In Queensland the major provisions of the Surrogate Parenthood Act 1988 (Qld) ("the Act") are identical with respect to commercial and altruistic surrogacy contracts.  For example, a prescribed contract is void,[61] the parties who enter into or offer t o enter into a prescribed contract may be liable for a fine, imprisonment or both[62] and the same restrictions as to advertising apply to both altruistic and commercial surrogate contracts.[63] The only substantial difference which appears in the legisl ation is that in relation to commercial surrogacy contracts there is an additional provision, s 3(1)( b) of the Act which states:

"A person shall not make, give or receive or agree to make, give or receive a payment or reward for or in consideration of - (i) entering into a prescribed contract; or (ii) a person agreeing to act as a surrogate parent ."

Although the legislation does not overtly distinguish between altruistic and commercial surrogacy in the same manner as other jurisdictions such as Victoria and the Australian Capital Territory, it appears that such a distinction will be read into the leg islation by the Queensland courts. Queensland is the only Australian jurisdiction which has witnessed a judgment on surrogate motherhood.  In this judgment, R v White heard before Black SM in Mossman Magistrate's court, the defendant, White, a medical practitioner, was charged with aiding or abetting a party to enter a surrogacy arrangement.[64] The penalty for such an offence is a fine, imprisonment or both. The magistrate in sentencing the defendant stated:

"there is not the slightest suggestion that you sought to gain or did gain personal enrichment from these actions.  There could be nothing, in my view, so abhorrent as trading in babies.  Some might say not even abortion but where babies become chattels t o be sold at will.  But I am satisfied that that was not your motivation.  You seem to have acted very much with the interests of another heart.  However, the law prohibits your activities...It is my view clearly that a custodial sentence is not warranted in the particular circumstances."[65]

The judgment appears to distinguish between the concepts of commercial surrogacy and corresponding ideas of profit or gain and altruistic surrogacy and notions of kindness and thoughtfulness viewing the former as worthy of more severe punishment than the latter.  The distinction is interesting as it assumes that personal enrichment on the part of the defendant centres upon monetary reward and ignores any other motivations which may give personal gratification.  For instance, in this case evidence was led not only illustrating the defendant's desire to assist another but also that the defendant "was a person vehemently opposed to abortion"[66] who would presumably gain personal gratification from seeing pregnant women agree to become surrogate mothers f or infertile women rather than have their foetus aborted.

3.5 Tasmania

In Tasmania both altruistic and commercial surrogacy contracts are void and unenforceable.[67] The Surrogacy Contracts Act 1993 (Tas) ("the Act") provides that "a person must not make or receive, or agree to make or receive, a payment or reward in rela tion to a surrogacy contract".[68] To do so attracts a fine or imprisonment.  There is no corresponding provision for altruistic contracts.[69]

In Tasmania, as in the other jurisdictions, successful completion of an altruistic surrogacy agreement is made difficult through the effect of legislation which was not drafted with surrogate motherhood in mind.  For example, adoption legislation in Tasma nia prohibits a person from entering into a private adoption arrangement and a woman who gives birth to a child as a result of the carrying out of an artificial conception procedure is deemed to be the mother of the child, whether or not the child is biol ogically hers.[70]

In Tasmania the Act:[71]

"...makes no distinction between commercial or non-commercial surrogacy contracts with one important exception: the [Act] does not penalise those parties who enter into a non-commercial surrogacy.  The Government believes that the arguments against surrog acy that I previously stated apply equally to non-commercial or so-called 'altruistic surrogacy'. However the Government, in line with the recommendations of a joint meeting of Commonwealth and State ministers responsible for Health and Social Welfare, d oes not believe that the legislation should penalise parties to this type of surrogacy arrangement...The Government is confident that this bill represents an appropriate response to a practice that has the potential to threaten the concept of marriage and family and the role of women in society."

4. Is there a distinction between commercial and altruistic surrogacy?

The above statement by the Minister for Community Services, the Honourable Mr Roger Groom in his Second Reading Speech points to a dichotomy which exists in the current legislation.  If the same objections apply to commercial surrogacy as to altruistic su rrogacy, why treat the practices differently?

It could be argued that this dichotomy in the legislative treatment of altruistic and commercial surrogacy is a response to the demands of society.[72] Thus, commercial surrogacy is penalised more severely than altruistic surrogacy as it is the payment o f a fee to the surrogate mother which has raised the most objections from society.[73] However, such an assertion is difficult to maintain given opinion polls which have been carried out on the practice of surrogate motherhood.  For example, in May 1987, the NSW Law Reform Commission conducted an opinion poll[74] which found that 51% of Australians were not opposed to surrogate motherhood.  Of these 51%, 16% expressly approved of it, 33% of all respondents objected to surrogate motherhood for married coup les, a small proportion did not have an opinion and 13% said that they would need to know more. Thus, over half of the survey population could not find fault with surrogacy.  Further, the same poll showed that there "is clear support among Australians for providing some form of payment to the surrogate mother.  Forty per cent considered that the surrogate mother should be paid for her medical expenses plus a fee agreed with the couple. A further 34% considered she should receive payment for medical expen ses only.  Only 17% thought that there should be no payment at all."[75]

Given that community consensus does not reflect current legislative directives over how to deal with altruistic and commercial surrogacy, the question remains as to why a distinction between the practices has been enshrined in legislation.  From the extr acts from parliamentary debates in the Australian Capital Territory, South Australia and Tasmania which appear above, there are at least three arguments which have been put forward to explain why the legislation distinguishes between the practices:

A. the practice of altruistic surrogacy cannot be stopped therefore there is little point passing legislation to regulate it;

B. altruistic surrogacy is more acceptable as it occurs between friends and relatives rather than strangers (ie: commercial surrogacy is potentially more devastating for parties to such an agreement as friends and relatives are more likely to have regard for each others welfare); and

C. altruistic surrogacy does not threaten our perceptions of the role of women, marriage and the family to the same degree as commercial surrogacy.

The first argument, while possibly containing an element of truth, is a little spurious.  Such an argument can be put forward to prevent parliament legislating against any form of behaviour which society deems to be undesirable.  For example, incest canno t be stopped therefore there is little point passing legislation to regulate it.  Obviously, this is a position which most of society would find unacceptable.  Such an argument may therefore be rejected as being inadequate in its explanation of legislativ e failure to prohibit altruistic surrogacy in the same manner as commercial surrogacy.

The second and third arguments are more plausible.  Together, these arguments pose the issue that the practices of commercial and altruistic surrogacy are firstly, fundamentally different and secondly, that altruistic surrogacy is more acceptable than com mercial surrogacy. To evaluate this issue the arguments surrounding the practices must be examined in order to determine whether the objections to the practice of commercial surrogacy also apply to altruistic surrogacy.[76]

4.1 Consent

This argument, which objects to the practice of surrogacy, applies to both commercial and altruistic surrogacy.  It centres around the issue of a surrogate mother being fully informed of the procedure she is about to go through in order that she can giv e consent.  It has been argued that it is impossible for a woman to give consent to the procedure of surrogate motherhood.  This is based on the assumption that a woman cannot know more than nine months before a child is even conceived as to how her feeli ngs will be towards the child and towards relinquishing it upon birth.[77] The legislation in each jurisdiction implicitly acknowledges this point by rendering all agreements void and unenforceable, meaning that the commissioning parents to either a comm ercial or an altruistic surrogacy agreement cannot force a surrogate mother to relinquish her child.

4.2 An unnatural practice This objection applies to both altruistic and commercial surrogacy. It centres on the view that surrogacy is unnatural and therefore should not be condoned.[78] Perhaps the best example of this type of argument is provided by the Vatican - which has cond emned surrogacy and all other non-conjugal reproductive arrangements as sinful.[79] This has been the consistent view of the Roman Catholic Church since the nineteenth century, when new technologies of artificial procreation were first experimentally ap plied to humans.[80] The Church states that its position is not a policy decision, nor a precept based on outdated religious motives; rather, it argues its position is a necessary defence of human values. These values require that any activity separatin g sex from procreation be excluded as it is morally wrong.  This stance implies that the sanctity of the traditional family unit will be threatened if a third party, such as a surrogate mother, plays any role in donating or gestating a child.[81]

4.3 Undesirable Separation of Roles?

This objection also applies to both commercial and altruistic surrogacy. It is based on the assertion that reproductive technology is creating three types of "mothers":[82]

a) the genetic mother who donates or sells her eggs[83]

b) the surrogate or gestational mother who carries the baby

c) the social mother who raises the child.

In essence this objection argues that the splitting of the construct of motherhood into three roles may lead to the potential erosion of the family structure.[84] It is argued that inherently the destruction of a family takes place due to the surrogate mo ther's preconceived intent to abandon the child to the social mother and it is questioned as to whether this end of furthering one family justifies the means of destroying another.[85] This objection still fails to distinguish between the concepts of alt ruistic and commercial surrogacy.

4.4 Commodification of the Child

At first blush, this objection seems to relate only to commercial surrogacy.[86] It suggests that the payment of a fee to the surrogate mother injects an element of commercialisation and potential exploitation into a sacred event: the birth of a child.[8 7] However, a further breakdown of this objection demonstrates that arguments as to commodification also apply to altruistic surrogacy arrangements.

4.4.1 Product Quality

An objection often raised with respect to the commodification of the child, and therefore to commercial surrogacy in particular, is that the introduction of a market mechanism for acquiring a child fosters an expectation or demand for product quality.  Th e commissioning couple, paying large sums of money to obtain a child, may be reluctant to accept an imperfect child.  Indeed, as the child may be biologically related to the surrogate mother, the commissioning couple may attribute the defect to the surrog ate's genes or inadequate prenatal care.[88]

An example of this is the 1983 'Baby Doe' case. Mrs Judy Stiver, a Michigan housewife, agreed to bear a child for Alexander Malahoff and his wife for a fee of $10,000.  All went well until the child was born, when it was discovered that he suffered from m icrocephaly - a condition whereby the child has an abnormally small head and often turns out to be mentally retarded. Mr Malahoff no longer wanted the child, and told the hospital to withhold treatment - Mrs Stiver also rejected the child, saying that the re had been no maternal bonding. The hospital went to court and won permission to care for the child and the Michigan Department of Social Services fostered the child out.[89]

This was not the end of the matter, as Malahoff asserted that he could not be the father.  Mr Malahoff and Mr Stiver then underwent blood tests to establish paternity before appearing on the Phil Donahue television talk show to discuss the situation - whe re it was dramatically revealed that Mr Stiver was in fact the father.  It emerged that while Mrs Stiver was contractually obliged to abstain from intercourse for some time after insemination, she had not received any instruction about intercourse prior to insemination.[90]

The Stivers accepted that the child was their own.  Mr Malahoff reacted by suing Stiver for not producing the child he contracted for and the Stivers countered by suing their doctor, lawyer and psychiatrist for not advising them properly about marital sex .  They also sued Malahoff for invading their privacy by making the matter public and alleged that the child's illness was caused by a virus transmitted in Malahoff's sperm.[91]

As Singer and Wells[92] point out, many people would consider that such an episode provides sufficient grounds for prohibiting commercial surrogacy. These grounds are based firstly, upon the assumption that children will come to be treated as consumer go ods and secondly, that surrogacy arrangements will increase the risk that biological parents will consider it acceptable to abandon less than perfect infants after they are born.[93] Krimmel [94] suggests that such a rejection is more likely to occur beca use the commissioning parents contract not for any child; but a certain type of child - one which is value for money.

At issue is the question of whether the parties to a commercial surrogacy contract are more likely to reject an impaired child than parties to an altruistic surrogacy contract. Arguably, this objection as to product quality applies to both commercial and altruistic surrogacy. Indeed, it has been suggested that in altruistic surrogacy and commercial surrogacy, the child is "treated as a commodity to be bargained, whether for money or love or loyalty to another".[95] Further, there is nothing in a commerci al surrogacy arrangement which increases the possibility of rejecting an impaired child. In other words, it is the impaired condition and not the circumstances of the conception such as whether the child was a product of a commercial or an altruistic surr ogacy arrangement which raises problems.  Indeed, in both an altruistic and a commercial surrogacy agreement there is an increased risk that the commissioning parents will reject a disabled child.  This is because disputes may arise concerning genetic def ects on the part of the surrogate mother or allegations that the surrogate mother failed to take adequate prenatal care. Such arguments are separate issues from the payment of a fee.

4.4.2 Positive Eugenics

The next objection is that surrogate motherhood may lead to an exercise in positive eugenics.  This suggests that the market mechanism which exists in commercial surrogacy will lead to surrogates being selected for the positive attributes they offer, that "tall surrogates with classic profiles and straight teeth might command higher prices for their goods than might short, swarthy surrogates with crooked noses and overbites".[96] Kowall[97] points to the "Surrogate Mother Spring Directory" produced by th e Bioethics Foundation Inc. where potential surrogates offer photos, tell their height and weight, IQ,[98] college grade point average and language skills.  Noel Keane, in his book The Surrogate Mother,[99] gives an example of "Joseph" who wanted to cho ose the sex of his child by using a surrogate mother and a sperm splitting procedure.[100]

However, such an argument may apply equally to altruistic surrogacy.  An infertile couple may apply the same principles when no payment is involved to a surrogate mother.  Terese MacFadden, a surrogate mother who was unable to relinquish her child, talks about the infertile couple she desired to help advertising for a "surrogate mother who was attractive, intelligent and who had at least one child to prove her fertility."[101] Indeed, it has also been argued that the issue of positive eugenics, no matter how alarming,[102] is separate to that of surrogate motherhood. After all, the decision to marry a particular person may be based on similar preferences as to physical characteristics.  Also, it is no less likely that a fertile married couple or partie s to an altruistic surrogacy arrangement would employ a sperm splitting procedure (without a surrogate) to predetermine the sex of their child.[103]

4.4.3 A Means to an End

This objection is centred around the argument that rather than focusing on the needs of the child, the surrogacy contract exists primarily to satisfy the psychic and financial needs of adult parties.[104] The surrogate mother is thus viewed as desiring t o earn a fee, the infertile couple as wanting a child for their own ends.

Arguably, this objection applies to altruistic as well as commercial surrogacy.  One of the few empirical studies to be carried out on motivations of surrogate mothers found that the reasons why women undertake to be surrogate mothers are complex. The fin dings disproved that surrogate mothers are desperate women who are only after money. Parker presents data on 125 women who applied to be surrogate mothers. The findings were that of the 89% of women who said a fee was a necessary condition, it was neve r a totally sufficient reason for being a surrogate mother - it was accompanied by the complementary factors of (i) the perceived degree of enjoyment and desire to be pregnant and (ii) the perception that the advantages of relinquishment outweighed the di sadvantages.  For example, 35%[105] of applicants who had had a previous abortion or who had given up a child to adoption wanted to become surrogates in order to resolve their guilty feelings or deal with their unresolved loss by going through the process of losing a child again.[106] Thus some candidates for surrogate motherhood seem not only to be motivated by very real financial need but also to be influenced by traditional role expectations about the importance of pregnancy and motherhood in women's lives.[107]

4.4.4 Baby-Selling

This objection is based on the premise that the payment of a fee to the surrogate mother constitutes baby-selling.[108] The Waller Report [109] condemned such arrangements as "agreements for the sale and purchase of a child ...... the buying and selling of children has been condemned and proscribed for generations.  It should not be allowed to reappear".

Such an argument is inapplicable to altruistic surrogacy, but interestingly has also been rejected by the proponents of surrogate motherhood as applying to commercial surrogacy.  The reasons for this position were succinctly put by Judge Sorkow in Baby M .[110] Judge Sorkow reasoned that if a biological father paid the surrogate for her "willingness to be impregnated and carry his child to term.  At birth the father does not purchase the child.  It is his own biological genetically related child.  He ca nnot purchase what is already his."[111] The judge characterised the contract as a bargain for "totally personal service".[112]

Judge Sorkow's reasoning embodies two arguments that proponents of surrogate motherhood put forward against surrogacy as baby-selling.  These are firstly, that a surrogate arrangement is a pre-conception contract. This means that the child has always bee n intended to be in the custody of the commissioning couple.  Consequently, it cannot be a baby-selling contract, as in such a contract a mother who would ordinarily keep a child is induced by money to relinquish custody.  Secondly, as the commissioning f ather makes a genetic contribution to the child, he is a natural parent. It is therefore argued that a natural parent cannot purchase a right in the thing in which he already holds an interest - parenthood.[113] Further, payments made to the surrogate m other are viewed, by proponents of surrogacy, as compensation for services rendered and not as a fee for selling the baby.[114]

However, even if the objection that commercial surrogacy constitutes baby selling is accepted as legitimate, it can be argued that this objection also applies to altruistic surrogacy.  This is because, in surrogate motherhood a child is conceived to be g iven away. Thus, for whatever reason the child is created - for love or for money - ultimately the child is treated as a commodity to be transferred to someone else.

4.4.5 Psycho-social well being of the child

A further important objection to commercial surrogacy is the psychological effects the surrogacy arrangement may have on the child.[115] An example of this is the concern for how the child may be affected by learning that it's gestating mother conceived and carried it with the deliberate intention of giving it up to someone else.[116] Other concerns include the emotional damage which may result from separation from the carrying and birth mother just after birth.  Other difficulties include what to put on the birth certificate; to telling the child of its origins - and the fact that the child was carried for a fee in the case of commercial surrogacy. Most of the psychological risks to the child stem from the separation of genetic and gestational parentho od from social parenting and would therefore seem to apply equally to commercial and altruistic surrogate motherhood.

4.5 Commodification of Parenthood

This objection is often assumed to apply solely to commercial surrogacy. It focuses upon the particular services provided by the surrogate mother and maintains that surrogacy fosters a "commodification" of parenthood. [117] That is, through creating a ma rket for gestational and genetic services, surrogate motherhood treats procreation as a tradeable commodity.  The fear is that reproduction which involves technological assistance, money, arms-length arrangements between strangers, and transfers of reprod uctive services results in commodification and the devaluation of parenthood.[118] However, as was the case with objections based upon the commodification of children, a closer examination of this objection reveals arguments equally applicable to both co mmercial and altruistic surrogacy arrangements.

4.5.1 Exploitation of Poor Women

In Surrogate Parenting Associates v Cth ex rel Armstrong[119] the dissent of Wintersheimer J noted the possible exploitation of "financially needy women as a public policy consideration that the court should have considered".  This dissent is based on t he fear that upper and middle class couples offering money to lower income surrogates will exploit their reproductive capabilities and depreciate their worth as human beings.[120] Perhaps the more alarming feature of this argument is the prediction made by John Stehura, President of the Bioethics Foundation Inc., that commissioning couples will be able to recruit women in Third World countries at a fraction of the going rate.[121]

Arguably, the same objections can be applied to altruistic surrogacy. Within a family situation for example the probability is that those with less power among the family members may be the ones pressurised towards altruism.[122] Stainsby gives the exam ple of Alejandra Munoz, a poor illiterate Mexican woman, who was brought illegally to the US on the understanding that when she became pregnant for her infertile cousin the embryo would be flushed out and transferred to this cousin.  On threatening to hav e an abortion when told she was obliged to continue the pregnancy, her relatives kept her under house confinement, threatening to expose her as an illegal alien.[123]

Additionally, it has been argued that the payment of a large fee makes it less exploitative and the most oppressive contracts are the low paying ones.[124] If this argument is accepted, it may follow that the most oppressive results of all is to allow su rrogacy but prohibit the payment of a fee.  This is due to the argument that such a result will fit our tradition of non-compensation for women's work.[125]

Support for this argument can be derived from the decision of the Supreme court in Baby M.  The court stated that surrogacy was "potentially degrading to women".[126] The court went on to hold that surrogacy arrangements would be acceptable only if the y did not involve the payment of a fee - in other words altruistic surrogacy was seen as acceptable. Critics of this decision, such as Shultz[127] find the court's decision disturbing.  They point out that the court stated that the practice of surrogac y was objectionable since it ignores fundamental factors such as the fitness of the commissioning couple and the best interests of the child.  Yet the court held that it would not invalidate the practice if the surrogate was not paid.[128] While the cour t may have believed that eliminating the payment of a fee would end surrogacy,[129] it did not explicitly state this.  It would thus seem that the court genuinely believed that altruistic surrogacy is acceptable, that the bearing of a child for another is not problematic and that payment is the real concern, rather than the range of other matters which were raised.  Thus, Shultz states that the removal of the court's objections to the practice itself, "smacks all too familiarly of the notion that while me n get paid for their efforts, skills and services [sperm are among the things for which men get paid] women, being women, should do their women-things out of purity of heart and sentiment".[130] Further, it has been suggested that this is a direct conse quence of women's consignment to the private sphere; it seems money is only the currency of the public sphere.[131]

There is also the argument that the singling out of sexual and reproductive capacities as unacceptable commercial services may reinforce stereotypes that define women primarily by those capacities.[132] This argument demands that surrogacy be evaluated i n the wider context of women's political inequality.  In this context, Radin[133] has suggested that whether surrogacy is commercial or altruistic may be an ironic self deception.  That is, surrogates may feel they are fulfilling their womanhood by produc ing a baby for someone else, although they may be just reinforcing oppressive gender roles.  Radin argues that such a result may also be applied to the infertile woman who may believe that it is her duty to raise her partners genetic offspring instead of adopting or having any children at all.[134] Such women may have conflicts with their partners that they cannot acknowledge or a kind of false consciousness or guilt about being unable to bear the genetic child her husband desires.

Finally, altruistic surrogacy has been viewed as exploiting women as it builds upon societies expectations of women as altruistic. In other words, women who are "normal" are supposed to be giving, selfless and self sacrificing, even the term "altruistic"  surrogacy implies that the practice is a positive and constructive one.[135]

4.5.2 Psychological Harm

This objection applies to both altruistic and commercial surrogacy.[136] It maintains that surrogacy arrangements treat the surrogate mother as an emotionless vessel - a breeding machine and less than human.[137] The real concern lies with the psychologi cal harm which relinquishment of the child may cause to the surrogate mother.[138] It has been suggested that a mother develops not only physical but also strong emotional ties to the child she carries (referred to as "bonding") - separation from the chil d is thus causes psychological harm and emotional trauma to both mother and child. Indeed, in a comprehensive survey of women who had given up their children for adoption, the majority felt an overwhelming sense of loss for periods of up to 30 years.[139] This has been said to be analogous to the outcome of surrogacy.[140]

4.5.3 Emotional Exploitation

This objection centres on the possible emotional exploitation of the surrogate mother.[141] It suggests that a form of exploitation arises when one party to the transaction is orientated toward the exchange of "gift" values, while the other party operates in accordance with the norms of the market exchange of commodities.[142] This objection applies to both commercial and altruistic surrogacy.

In a surrogacy agreement the surrogate mother gives the ultimate gift. Initially, she gives the gift of her child; she then gives the gift of the status of mother to another woman and finally, she gives the couple the status of family.[143] As Sappideen has pointed out, gift relationships traditionally give rise to reciprocal obligations[144] where three sets of norms operate: obligations to give, to receive and to repay in equal value.  Sappideen points out that in the area of kidney donations these n orms have operated with adverse consequences.  Firstly, in relation to the obligation to give, subtle pressures may be brought on a family member to donate his or her kidney; secondly a dying recipient was not absolutely free to reject the gift as refusal implied rejection of the donor and thirdly, the donee may be left with a sense of a continuing obligation to the donor and the donor tends to exhibit a proprietary interest in the conduct and the life of the recipient.[145]

Further, the tacit acceptance of altruistic surrogacy and the contrast it is held in relation to commercial surrogacy is based on the assumption that families and friends base decisions such as bearing a child for a family member on grounds where all part ies are equal and with no pressure applying from other family members. Arguably this is not the case as a woman can be physically, financially, or more probably, emotionally coerced to assist an infertile sister or friend.  If she has agreed to bear the c hild, family dynamics may make it impossible for her to keep the child if she so desires - the loss of her family as retribution may be too much for her to give up.[146] In other words it may be easier for a commercial surrogate mother to cancel the cont ract and return any monies received than it is for a surrogate mother to withhold the child from a relative.  Thus, commentators suggest that such emotional pressure is more likely to occur in an altruistic arrangement than a commercial one[147] whereas " [p]reviously attention has been focused on the economic pressures brought to bear in commercially based surrogacy; more recently the potential for the equally forceful emotional pressures brought to bear on women in so-called altruistic intra-familial sur rogacy has been revealed."[148] Elizabeth Kane, America's first surrogate, who has since identified her own altruism as stemming from "low self esteem", once commented that Maggie Kirkman (a commissioning mother) was more concerned about her unborn baby than her surrogate sister when the latter began to haemorrhage.[149] As Stainsby has explained:

"The repercussions [of refusing to relinquish a child] would be particularly painful in an altruistic surrogacy situation.  It is here that a decision to keep or relinquish the child can cut deep into a surrogate woman's most intimate family ties and supp ort systems. (If the child is disabled in any way neither the surrogate nor the commissioning parents may wish to keep it).  In a commercial surrogacy situation a surrogate can still have her family supports.  In an altruistic surrogacy one's kith and kin can become one's accusers."[150]

5. Why is there a legislative distinction between altruistic and commercial surrogacy?

From the above analysis, it appears that there are serious and disturbing objections to the practice of surrogacy which apply equally to both commercial and altruistic surrogacy arrangements.  Given that this is the case, it becomes difficult to explain w hy the majority of jurisdictions have enacted legislation which treats commercial surrogacy as a criminal offence while leaving altruistic surrogacy unregulated.  Such legislative intervention in surrogacy arrangements allows an individual to utilise surr ogate motherhood as a form of procreation only within these state controlled and defined parameters.  While such legislative intervention affords the individuals concerned a measure of protection from possible harm, the underlying assumption seems to be that there is a particular category of surrogate motherhood that as a matter of policy, is better for the individuals involved, or for society or both.[151] Therefore, commercial surrogacy is treated more punitively than altruistic surrogacy by legislatu res as it is considered a less desirable form of behaviour. Conversely, altruistic surrogacy is perceived as more palatable to society, as posing less danger to the parties involved in the arrangement and as conforming more closely to the convictions we hold surrounding reproduction.

Reproduction, parenthood and family are matters about which most people hold deep convictions - convictions which are often based on a certain theological or moral persuasion.[152] Traditionally, these convictions reflect a socially constructed paradigm of a 'nuclear family' where reproduction takes place within a permanent relationship between one man and one woman to the exclusion of all others. This relationship has traditionally been considered to be mysterious, sacred and personal. Consequently, th ere is ambivalence about or discomfort with methods of human reproduction which depart from this traditional and 'natural' process of creating human life.  One such method of human reproduction which directly challenges traditional convictions concerning reproduction and the formation of a family is surrogate motherhood. Surrogate motherhood, which has at its essence the deliberate creation of a child for the purpose of surrendering the child upon birth to the care of another represents a "striking depart ure from our collective accumulative experience"[153] and thus contravenes many of the normative assumptions such as love, parenthood and nature which surround the traditional paradigm of family formation.  Given that surrogate motherhood departs from rep roductive mores it is not surprising that current legislation displays a distinct distaste for the practice of surrogacy and of commercial surrogacy in particular.

This pattern of the state rejecting forms of reproduction which depart from the traditional nuclear family and reinforcing traditional norms regarding reproduction and the family is further illustrated through intervention by the state in another form of artificial reproduction - IVF. In the three Australian jurisdictions where legislation has been enacted governing access to IVF programs, the practice has been assimilated as closely as possible to the conventional norm of the family. In South Australia the Reproductive Technology Act 1988 limits access to married infertile couples or de facto heterosexual couples who have lived together for five years or those whose children are likely to have a genetic disorder.  In Victoria the Infertility (Medica l Procedures) Act 1984 allows artificial fertilisation procedures only to be carried out on a married woman who is unlikely to become pregnant or whose child may inherit an 'undesirable' genetic trait or de facto heterosexual couples if they were in a r elationship before the section of the Act commenced.  In Western Australia the Human Reproductive Technology Act 1991 allows only infertile married couples or heterosexual de facto couples who have lived together for five years or who are likely to tran smit a genetic defect to be treated with IVF.  Thus the outcome is that persons or families who do not come within the traditional parameters of the family, such as lesbian couples, are excluded from creating a family through these means.  Again with prac tices such as artificial insemination by donor ("AID"), legislation[154] allows only married women or women in a de facto relationship to be inseminated with the end result being that the third party donor simply "disappears" from the equation and the wo man's husband becomes the legal father.

6.  What is the effect of failing to regulate altruistic surrogacy?

One consequence of the law's defining of the parameters with regard to IVF and artificial insemination is that these practices are recognised and accepted as legitimate by the state.[155] A similar implication exists in the legislation which exists with respect to altruistic surrogacy.  That is, the refusal to explicitly ban altruistic surrogacy in legislation implies a tacit acceptance and acknowledgment of its practice.[156] Therefore, through legislative inaction altruistic surrogacy, an unconventio nal form of procreation, has been implicitly accepted as fitting into traditional structures of women's role in society, reproduction and family.

The implied legislative acceptance of surrogacy without payment reinforces dominant values and social aims regarding the social unit.  In essence these values are that it is inappropriate to mix love and intimacy with cash and commerce but that it is appr opriate and acceptable to undertake actions out of generosity and feeling.  Cash and commerce, which are perceived as are seen as being the domain of commercial surrogacy, involve self interest; human reproduction is seen as principally a matter of unself ish and noble behaviour.[157] Thus, altruistic surrogacy, which does not involve money, fits society's perception of human reproduction as a noble and selfless act.

What the legislation then implies is that it is not the idea of having third parties produce babies for infertile couples which is unacceptable, but rather the commercial nature of the enterprise and in particular the payment to the woman for producing a baby she does not plan to keep. As the arguments surrounding the practice illustrate, this assumption that altruistic surrogacy is different from commercial surrogacy is questionable.  Indeed, such a distinction may have unforeseen and undesirable conseq uences, as Raymond has argued:

"Validating altruistic surrogacy on the level of public policy leaves intact the image of a woman as a reproductive conduit - someone through whom someone passes.  The woman used as a conduit for someone else's procreative purposes, most evident in the ca se of surrogacy, becomes a mere instrument in reproductive exchanges, an incidental incubator detached from the total fabric of social, affective, and moral meanings associated with procreation."[158]

7.  A Need for Legislative Reform

The legislation which has been passed to regulate the practice of surrogate motherhood distinguishes between the practices of commercial and altruistic surrogacy.  Thus, this legislation has created two categories of surrogate motherhood. This legislative dichotomy is undesirable for the following reasons:

A. It leaves parties to altruistic surrogacy agreements uncertain of the relevant law. While the legislation provides that such agreements are unenforceable, they have not been explicitly prohibited by the state.

B. The creation of two categories of surrogate motherhood and the concomitant failure of legislatures to either clearly condone or reject altruistic surrogacy reinforces traditional stereotypes of reproduction, women and the family. These stereotypes view the labour of women and of the surrogate mother as a noble, selfless, labour of love whose altruistic acts should be permitted and encouraged.[159] Arguably, if this is the desired outcome, such arrangements should be state sanctioned and state protecte d.

C. It ignores the fact that many of the same objections which apply to commercial surrogacy apply equally to altruistic surrogacy. D. It provides a "window of opportunity" which has becoming increasingly utilised to promote altruistic surrogacy arrangements.[160]

The legislative distinction of surrogate motherhood falling into two neat categories of altruistic and commercial should be viewed with caution. While it is appealing to enact legislation which adheres to traditional notions of love and self sacrifice in relation to child bearing, in reality many of the objections attributed to commercial surrogacy are equally applicable to altruistic surrogacy arrangements. Further, the creation of legislative categories for surrogate motherhood may have unforeseen conse quences for women, reproduction and family. As surrogate motherhood has traditionally been the subject of polarised views, legislative reform to remove the dichotomy between commercial and altruistic surrogacy may not meet community consensus. Surrogacy r emains a practice which is alternatively viewed as a solution to an important social problem characterised by love and self-sacrifice or as a threat to society's moral fabric embodying exploitation and commodification.[161] It appears however that regardl ess of which side of this debate is taken the current legislative distinction between the practices of commercial and altruistic surrogacy is, at this stage, undesirable and untenable.


[1] Infertility (Medical Procedures) Act 1984 (Vic) s 30.

[2] Family Relationships Act 1975 (SA) as amended by the Family Relationships Act Amendment Act 1988 (SA).

[3] Surrogate Parenthood Act 1988 (Qld).

[4] Surrogacy Contracts Act 1993 (Tas).

[5] Substitute Parent Agreements Act 1994 (ACT) and the Substitute Parent Agreements (Consequential Amendments) Act 1994 (ACT).

[6] "Kennett Drops Surrogacy Plan" The Australian, April 27, 1995;  M Carter, "Victoria - The Surrogacy State" (1993) 36 Health Issues 12; W Weeks, "Will Victoria also 'Proceed with Care' in relation to Reproductive Technology" (1994) 38 Health Issu es 35.  The proposal was to amend the Infertility (Medical Procedures) Act 1984 to allow fertile women to participate in the IVF program as part of 'voluntary' surrogacy arrangements.  At the time of writing, the proposal had lapsed.

[7] Substitute Parent Agreements Act 1994 (ACT) s 8 and the Substitute Parent Agreements (Consequential Amendments) Act 1994 (ACT).

[8] The development of fertility clinics began in Sydney in 1938, see C W Lloyd, "The Development of Infertility Treatment in Australia" (1991) 31(3) Australian and New Zealand Journal of Obstetrics and Gynaecology 254.  As to the development of inferti lity treatments more generally see N Pfeffer, The Stork and the Syringe: A Political History of Reproductive Medicine, Polity Press, London, 1993

[9] See In the Matter of Baby M (1988) 537 A.2d 1227, where Mrs Stern the commissioning mother was suffering from multiple sclerosis.

[10] L Haberfield, Surrogate Motherhood in Victoria: What Now for Altruistic Surrogacy? (1988) Unpublished Paper, Monash University, 37.

[11] P Singer & D Wells, The Reproduction Revolution: New Ways of Making Babies, Oxford University Press, London, 1984 , 113.

[12] There are further theoretical possibilities of fertilisation such as Gamete Intra Fallopian Transfer (GIFT) but there are no records of such procedures being used in surrogacy arrangements.

[13] J Leeton,"The Current Status of IVF Surrogacy in Australia" (1991) 31(3) Australian & New Zealand Journal of Obstetrics and Gynaecology 260. Surrogacy can be achieved with no more technology than a turkey baster see J Areen, "Baby M Reconsidered" (1988) 76 Georgetown Law Journal 5, 1741.

[14] In the last 20 years in the United States over 1 000 births using this method have been reported see J Leeton, ibid, 260.

[15] L Haberfield, op cit, n 10, 37.

[16] This was the birth of Alice Kirkman. [17] J Leeton, op cit, n 13, 261.

[18] J Leeton & K Dawson "A Case of Attempted IVF Surrogacy in Victoria: Breaking the Law or Breaking the Deadlock?" (1994) 34(5) Australian & New Zealand Journal of Obstretics & Gynaecology 586.

[19] Surrogate motherhood is often grouped with other forms of recent developments in reproductive technology in a category called "artificial conception".  The practice of surrogacy is however, neither a new development in human reproduction nor is it ne cessarily technological. Possibly the first recorded fertility test and act of surrogacy occurred in 1913 BC when Sarai sent Hagar, her handmaid to bear a child for Abraham: see L W Cox, "The Development of Infertility Treatment in Australia" (1991) 31(3) Australian & New Zealan d Journal of Obstretics and Gynaecology 254 and Genesis 16:2.

[20] M Bracher & G Santow, "Fertility Desires and Fertility Outcomes" (1991) Journal of the Australian Population Association 1, 33.  It has been suggested that as many as one couple in six are involuntarily childless, figures which represent a threefol d increase in infertility in the last 20 years D Wallis, "The New Origins of Life" Time September 10, 1984, 46.

[21] D R C Chalmers, "No Primrose Path" (1989) 7 Medicine and the Law 1 at 2.  In Australia the number of children available for adoption dropped from 9 798 in 1971 - 71 to 3 072 in 1982-83.  In NSW the number of placements of adopted children in the fi nancial years: 1986-87 was 112; 1987-88 was 86; 1988-89 was 89; 1989-90 was 63; 1990-91 was 54; 1991-92 was 54; 1992-93 was 48; 1993-94 was 44.  This is due largely to single parent families becoming the norm and unmarried mothers not placing their childr en up for adoption.

[22] M A Field, Surrogate Motherhood, Harvard University Press, Cambridge Mass., 1988.  For an example of a 'typical' surrogacy contract see K M Brophy, "A Surrogate Mother Contract to Bear a Child" (1981-82) 20 Journal of Family Law at 263 - 291.

[23] The term "infertile couples" which is often used in the literature in this area seems to be restricted to married heterosexual couples.

[24] M Charlesworth cited in ACT Attorney General's Department Discussion Paper Surrogacy Agreements in the ACT , Canberra, 1993, 5.

[25] J Wright "Wombs for Rent" (1990) 116 Australian Left Review 12.

[26] See for example J Scutt "Whose Surrogate? "Surrogacy" Ethics and the Law" (1991) Surrogacy - In Whose Interest? Proceedings of National Conference on Surrogacy, Mission of St James and St John, M Meggitt (Ed), 122.

[27] National Bioethics Consultative Committee, Surrogacy Report 1, 1990, 8.

[28] E S Anderson "Is Women's Labor A Commodity" (1990) 19(1) Philosophy & Public Affairs 86.

[29] Family Law Council, Creating Children: A Uniform Approach to the Law and Practice of Reproductive Technology in Australia AGPS Canberra 1985; Australian Health Ministers Advisory Council Reproductive Technology Working Group report considered by the Joint Meeting of The Australian Health Minister's Conference and The Council of Social Welfare Ministers, 1991; National Bioethics Consultative Committee, Surrogacy Report 1 & 2, 1990; NSW Law Reform Commission Surrogate Motherhood, Report No. 60 , NSW Government Printer, 1988; Victorian Committee to consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilisation, Report on the Disposition of Embryos Produced by In Vitro Fertilisation, (the Waller Report), Victorian Government Printer, 1984; Report of the Special Committee Appointed by the Queensland Government to Inquire into the Laws Relating to Artificial Insemination, In Vitro Fertilisation and Other Related Matters, Queensland Government Printer, 1984; Final Report: Com mittee to Investigate Artificial Conception and Related Matters, Tasmanian Government Printer, 1985; Report of the Committee Appointed by the Western Australian Government to Inquire into the Social, Legal and Ethical Issues Relating to In Vitro Fertili zation and its Supervision, 1986; Report of the Select Committee of the Legislative Council on Artificial Insemination by Donor, In Vitro Fertilisation and Embryo Transfer Procedures and Related Matters in South Australia, South Australian Government P rinter, 1987; the ACT Attorney-General's Department, Discussion Paper: Surrogacy Agreements in the ACT, 1993.

[30] The National Bioethics Consultative Committee recommended that surrogacy be regulated by the State.

[31] K Andrews "Surrogacy, Public Policy and the Law" (1993) 11(2) St Vincent's Bioethics Centre Newsletter 1, 2.

[32] Infertility (Medical Procedures) Act 1984 (Vic) s 30(2); Family Relationships Act 1975 (SA) s 10(h(c); Surrogate Parenthood Act 1988 (Qld) s 3(1); Surrogacy Contracts Act 1993 (Tas) s 6; Substitute Parent Agreements Act 1993 (ACT) s 7.

[33] Infertility (Medical Procedures) Act 1984 (Vic) s 30(3); Family Relationships Act 1975 (SA) ss 10(g)(1), 10(g)(2);  Surrogate Parenthood Act 1988 (Qld) s 4(1); Surrogacy Contracts Act 1993 (Tas) s 7; Substitute Parent Agreements Act 1993 (AC T) s 9.

[34] Infertility (Medical Procedures) Act 1984 (Vic) s 30(1); Family Relationships Act 1975 (SA) s 10(f); Surrogate Parenthood Act 1988 (Qld) s 2(2); Surrogacy Contracts Act 1993 (Tas) s 3; Substitute Parent Agreements Act 1993 (ACT) s 3.

[35] s 30(3) provides that: "a contract or agreement (whether made before or after the commencement of this section) under which a woman agrees with another person or persons to act as a surrogate mother is void".

[36] Infertility (Medical Procedures) Act 1984 (Vic) s 30(2)(b), 30(2)(c).

[37] This situation is not altered in the legislation which is to be proclaimed:  see Infertility Treatment Act 1995 (Vic) s 59.

[38] However, IVF surrogacy procedures are currently being performed in Victoria where the proposed surrogate mother has had a tubal ligation: see J Leeton & K Dawson, op cit, n 18.

[39] L Haberfield, op cit, n 10, 37.  See also the Family Law Act 1975 (CTH).

[40] Adoption Act 1984 (Vic) s 12.

[41] S Roberts, "Warnock and Surrogate Motherhood" in I Kennedy A Grubb Medical Law: Text with Materials, 2nd Ed, Butterworths, London, 1994, 827.

[42] Op cit, n 29, Paragraph 4.12 , 53.

[43] Substitute Parent Agreements Act 1993 (ACT) s 3 defines "substitute parent agreement" as: "a contract, agreement, arrangement or understanding under which - (a) a person agrees to become, or to attempt to become, pregnant and that a child born as a result of the pregnancy is to be taken to be (whether by adoption, agreement or otherwise) the child of another person; or (b) a person who is pregnant agrees that a child born as a result of the pregnancy is to be taken to be (whether by adoption, agreement or otherwise) the child of another person."

[44] Substitute Parent Agreements Act 1993 (ACT) s 9.

[45] The penalty for such an offence is a fine, imprisonment or both: Substitute Parent Agreements Act 1993 (ACT) s 6.

[46] The Explanatory Memorandum to the Substitute Parent Agreements Bill 1994 (ACT) states that this term refers to altruistic surrogacy arrangements.

[47] See the definition of "commercial substitute parent agreement" n 42.

[48] The offence is punishable by a fine or imprisonment or both: Substitute Parent Agreements Act 1993 (ACT) s 5.  Section 3 of the Act defines a "commercial substitute parent agreement" as "a substitute parent agreement under which a person agrees to make or give to another person a payment or reward, other than for or on account for expenses connected with - (a) a pregnancy (including any attempt to become pregnant) that is the subject of the agreement; or (b) the birth or care of a child born as a result of that pregnancy;"

[49] Substitute Parent Agreements Act 1993 (ACT) s 7.

[50] The penalty for such an offence is a fine, imprisonment or both: Substitute Parent Agreements Act 1993 (ACT) s 8.

[51] Discussion on Substitute Parent Agreements Bill, ACT Legislative Assembly 11.10.94

[52] This is because parenthood of the child is established by other legislation see for example the Birth (Equality of Status) Act 1988 (ACT), the Artificial Conception Act 1985 (ACT), the Family Law Act 1975 (CTH) and the Adoption Act 1993 (ACT) .  For a discussion of the effect of this legislation see the ACT Attorney-General's Department, Discussion Paper: Surrogacy Agreements in the ACT 1993.

[53] As previously stated these penalties are $5000 in the case of altruistic surrogacy.  Such a penalty is favourable to the cost of a surrogacy agreement in the United States which is normally $60 000 US. There have been reports of Australian couples t ravelling to the US to enter such arrangements: see The Age, 11.7.90 at 4; the New Idea 1.9.90 at 7.

[54] See ACT Legislative Assembly Summary of Provisions Substitute Parent Agreement Act 1994

[55] Substitute Parent Agreements Act 1993 (ACT) s 10.

[56] Family Relationships Act 1975 (SA) s 10f defines "surrogacy contract" as: " a contract under which - (a) a person agrees - (i) to become pregnant or seek to become pregnant; and (ii) to surrender the custody of, or rights in relation to, a child born as the result of the pregnancy; or (b) a person who is already pregnant agrees to surrender custody of, or rights in relation to, a child born as a result of the pregnancy."

[57] Family Relationships Act 1975 (SA) 10 f defines "procuration contract" as "a contract under which - (a) a person agrees to negotiate, arrange or obtain the benefit of a surrogacy contract on behalf of another; or (b) a person agrees to introduce prospective parties to a surrogacy contract"

[58] Family Relationships Act 1975 (SA) ss 10g(1) & 10(g)(2).

[59] This is punishable by a fine or imprisonment:  Family Relationships Act 1975 (SA) ss 10(h)(a) and 10(h)(b).

[60] Parliamentary Debates (Hansard) Third Session of the 46th Parliament, 16.2.1988, 2764.

[61] Surrogate Parenthood Act 1988 (Qld) s 4(1). Section 2(2) of the Surrogate Parenthood Act 1988 defines a "prescribed contract" as: "a contract, agreement or arrangement made between two or more persons, whether formally or informally and whether o r not for payment or reward, under which it is agreed - (a) that a person shall become or shall seek or attempt to become the bearer of a child and that a child delivered as the result thereof shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons other than the person first-mentioned in this paragraph (a); or (b) that a child delivered from a person who is the bearer of any embryo, foetus or child at the time when the prescribed contract is made shall become and be treated, whether by adoption, agreement or otherwise, as the child of any person or persons othe r than the person first-mentioned in this paragraph (b)."

[62] Surrogate Parenthood Act 1988 s 3(c).

[63] Surrogate Parenthood Act 1988 s 3(1).

[64] The defendant was charged with a breach of the Surrogate Parenthood Act 1988 (Qld) s 3(c) read in conjunction with Criminal Code (Qld) s 7.

[65] R v White Magistrates Court, Mossman, Criminal Jurisdiction, 25.10.93, 16-17.

[66] Ibid, 12.

[67] Surrogacy Contracts Act 1993 (Tas) s 7.  "Surrogacy contract" is defined as: "a contract, agreement or arrangement, with or without payment or reward, under which- (a) a person agrees to become, or is already, pregnant and agrees to surrender to another person the custody or guardianship of, or rights in relation to, a child born as a result of the pregnancy; and (b) the other person agrees to accept custody or guardianship of such a child."

[68] Surrogacy Contracts Act 1993 (Tas) s 4(4).  "Reward" is defined as "any benefit or other kind of property that has a monetary value" Surrogacy Contracts Act 1993 (Tas) s 3.

[69] This distinction is interesting given that the Tasmanian Committee to Investigate Artificial Conception and Related Matters (1985) concluded that "surrogate motherhood in general and commercial surrogacy arrangements in particular are unacceptable to the Tasmanian community at the present time", 87 see also M Otlowski, "Surrogacy Contracts Act 1993" (1993) 2 Australian Health Law Bulletin, 26.

[70] Ibid, 27.

[71] Parliamentary Debates (Hansard) Parliament of Tasmania House of Assembly, 42nd Parliament, 11.11.92, 4840 per Mr Roger Groom, Minister for Community Services.

[72] There is a possibility that this reflects the interests of pressure groups such as the medical profession who maintain a window of opportunity for research if procedures such as IVF are in public demand.

[73] These objections are based on the notion that a fee injects an element of commercialisation and potential exploitation into what is valued as a sacred event: the birth of a child, see T A Eaton "The British Response to Surrogate Motherhood: An Americ an Critique" (1985) 19 Law Teacher 163, 173.

[74] NSW Law Reform Commission, Artificial Conception; Surrogate Motherhood: Australian Public Opinion, May 1987, Research Report.

[75] Ibid, 19.

[76] As this section is examining objections to commercial surrogacy principles such as personal autonomy are not canvassed.

[77] M Stainsby, "The Surrogacy Debate Again: What about altruistic surrogacy?" (1993) 11(2) St. Vincent's Bioethics Centre Newsletter 5, 6.

[78] Proponents of surrogacy refute this by arguing that the right to found a family is viewed as such an integral part of society that it has been enshrined by the United Nations (UN) in Article 16 Part 1 of the Universal Declaration of Human Rights se e Uniacke, S., "In Vitro Fertilisation and the Right to Reproduce" (1987) 1 Bioethics 241, 248. In accord with this, proponents of surrogacy argue that the practice of surrogate mothering is not a threat to the family, but rather promotes the family as the basic unit of society by allowing the commissioning couple to create a traditional family structure through what may be the only means available see G P Smith II, "The Razor's Edge of Human Bonding: Artificial Fathers and Surrogate Mothers" (1983) 5 Western New England Law Review 666. Further, it is suggested that practices such as adoption, divorce and blended families frequently involve the introduction of third parties into the family unit see T A Eaton "The British Response to Surrogate Motherh ood: An American Critique" (1985) 19 Law Teacher 163, 173.

[79] L Andrews,Between Strangers, Harper & Row, New York, 1989, xiv citing the official policy statement of the Vatican Congregation for the Doctrine of the Faith, Instruction on Report for Human Life in its Origin and on the Dignity of Procreation (198 7).  Another example of this type of argument is that put forward by Canadian Professor David Suzuki who commented ".....infertility is nature's way of preventing genetic errors being propagated.  Societies have evolved all kinds of ways of compensating f or a couple's infertility.  If doctors feel they must service the desires of people when elsewhere in the world poverty, malnutrition, and parasitic diseases are taking such a terrible toll, it is a misappropriation of our limited resources" The Age, 5 July 1988, at 11.

[80] R D Lawler, Moral reflections on the New Technologies: A Catholic Analysis in Embryos Ethics and Women's Rights: Exploring the New Reproductive Technologies, E H Baruch, A F D'Adamo & J Seager (eds), Harrington Park Press, New York, 1988 at 168, no te 1.  The first firm teaching of the Church on this matter is found in the Decree of the Holy Office of March 17, 1887, insisting that artificial insemination of women is illicit.

[81] In relation to both altruistic and commercial surrogacy these claims are, to an extent, unanswerable as they involve subjective matters of faith or belief more than reason. It has been argued by Shultz, that to adopt an objection based on "unnatural ness" per se would lead to the eradication of many medical procedures such as artificial insemination which are already socially and legally accepted for use in conventional marriage. M M Shultz, "Reproductive Technology and Intent Based Parenthood: An Op portunity for Gender Neutrality" (1990) 2 Wisconsin Law Review 374. Artificial insemination is socially and legally accepted in Australia with 5000-6000 inseminations carried out each year, M Charlesworth, "Reasons For and Against Surrogate Motherhood"  in Surrogacy - In whose Interest?, Proceedings of the National Conference, February 1991, Mission of St James and St John, 58.

[82] G Corea, The Mother Machine, The Women's Press, London, 1988, 90.

[83] This type of mother occurs in IVF surrogacy.  As the US case of Johnson v Calvert No.(X63-31-90) illustrates however, it is this form of surrogate motherhood which raises particular problems with the definition of mother as to whether the mother is the woman who gives birth or the woman who is genetically related to the baby.  On this point also see G McBride, "US Battles Over Surrogacy" (1990) 301 The British Medical Journal 1062.

[84] On the other hand it can be argued that this objection is based upon subjective value judgements as to what the role of a mother and the family unit entails.  It assumes that there is a single, incontrovertible conception of family as a biological un it see R Macklin, "Artificial Means of Reproduction and Our Understanding of the Family" (1991) 21 Hasting Center Report 1, 5.

[85] B J Carney, "Where Do the Children Go? - Surrogate Mother Contracts and the Best Interests of the Child"  (1988) XXII Suffolk University Law Review, 1201.

[86] In accord with family law, the welfare of the child has been adopted by many commentators, as the most important consideration in surrogacy agreements.

[87] T A Eaton, op cit, n 78, 173.

[88] S O'Brien, "Commercial Conceptions:  A Breeding Ground For Surrogacy" (1986) 65 North Carolina Law Review at 145.

[89] D DeMarco, "The Conflict Between Reason and Will in the Legislation of Surrogate Motherhood"  (1987) 32 The American Journal of Jurisprudence at 23.

[90] L Tager, "Surrogate Motherhood, Legal Dilemma" (1986) 103 South African Law Journal 393.

[91] K Andrews, "The Educative Role of the Law:  Options for Regulation in Surrogacy" in Surrogacy - In Whose Interest?, Proceedings of the National Conference, 1991, Mission of St James and St John, 98.

[92] P Singer & D Wells, op cit, n 11, 119.

[93] J Areen, op cit, n 13, 1741.

[94] H T Krimmel "The Case Against Surrogate Parenting" (1983) 13 Hastings Center Report 37.

[95] K Andrews, op cit, n 91, 114.

[96] S O'Brien, op cit, n 88, 127.

[97] "The Commercialisation of Reproductive Technology" in The Baby Machine: Commercialisation of Motherhood, J A Scutt (Ed), McCulloch Publishing, Sydney, 1988, 118.

[98] Many articles point to the fact that positive eugenics is practised in artificial insemination for example see a 1980 report of a sperm bank established with all donors being Nobel Prize Winners in C Sappideen, "The Surrogate Mother - A Growing Problem" [1983] UNSWLawJl 5; (1983) 6 UNSW Law Journal 79, 97.

[99] N P Keane & D L Breo, New York, Everest House, 1981, 241.

[100] Refers to the separation of X and Y chromosome bearing sperm.

[101] MacFadden, "Surrogate motherhood - Refusing to relinquish a child" in J A Scutt (ed) The Baby Machine: Commercialisation of Motherhood, McCulloch Publishing, Sydney, 1988, 71.

[102] See however, E M Landes & R A Posner , "The Economics of the Baby Shortage" (1978) 7 Journal of Legal Studies , 345 where they argue that if baby selling were legalised the implication of eugenic alteration "would be small".

[103] L Haberfield, op cit, n 10, 13.

[104] S O'Brien, op cit, n 88, 145.  This is based on an ethical argument put forward by Immanuel Kant, who formulated the principle that one must never treat another person as a means to ones own ends, but rather as an end in him or herself. Proponents of surrogacy argue that even under conventional legal rules, children do not get a say in who their parents will be or for that matter in whether they will be born and therefore the child of a surrogacy arrangement would seem to be no more a means to an end than a child of an ordinary marriage. Proponent of surrogacy argue that the trouble and expense incurred by the commissioning couple would seem to additionally suggest that the child will be raised by parents who dearly want him or her.

[105] 26% had had a voluntary abortion, 9% had relinquished a child for adoption.

[106] PJ Parker, "Motivation of Surrogate Mothers: Initial Findings" 140(1) (1983) American Journal of Psychiatry 118.

[107] C Overall, Ethics & Human Reproduction, Allen & Unwin 1987, 123.

[108] P Schuck, "Some Reflections on the Baby M Case" (1988) 76 Georgetown Law Journal, 1794.

[109] op cit, n 29, Para 4.11 & 4.6.

[110] R A Crowley, "Developments in the Law: Surrogate Parenthood Contracts After Baby M"  (1988) 24 Willamette Law Review 4, 1060.

[111] 525 A. 2d at 1157.

[112] 525 A. 2d at 1160

[113] L Haberfield, op cit, n 10, 13.

[114] S M Recht, " "M" is for Money: Baby M and the Surrogate Motherhood Controversy" (1988) 37 The American University Law Review 1013, 1027.

[115] This objection extends to children who are witnesses of the process: see S Roberts, op cit, n 41.

[116] C Overall, op cit, n 107, 111.

[117] T A Eaton, op cit, n 78.  On the other hand it has been argued that there may be some virtue in commodifying reproductive capacities, suggestions have included a move towards a fully-fledged baby market where pregnant women contemplating abortion are paid a fee to carry the child to term and place it up for adoption, in this context, commodification is seen as a step towards greater efficiency in the resolution of the dual problems of abortion and infertility see E M Landes & R A Posner, op cit , n 102, 347-8.

[118] M M Shultz, op cit, n 81, 336. For example, Margaret Jane Radin has warned of the "domino effect" of commodification of women's reproductive capacities.  Radin claims that this leads to the commodification of children and ultimately to the commodi fication of everyone see M J Radin "Market-Inalienability" (1987) 100 Harvard Law Review 8, 1849.

[119] 537 A. 2d 1227 (N.J. 1988).

[120] S M Recht, op cit, n 114, 1024.  It has been estimated that a payment to a surrogate mother of $10,000 calculated at an hourly rate for 24 hours a day and for 9 months comes to around $1.50 per hour, see the National Bioethics Consultative Committ ee, op cit, n 29, 39. Proponents of surrogate motherhood however, argue that these contentions go too far. Indeed, it is suggested that the available data contradicts the view that surrogates are members of an underclass. The demographic profile of a s urrogate is as follows - the average age is 25, half the women are married and one-quarter divorced and one-quarter single.  Half are Catholic and half are Protestant.  Over half have high school qualifications and about 10% bachelor degrees.  40% were un employed and the other 60% had household incomes of $6,000 to $55,000 and it has been argued that as surrogacy in the US becomes widespread, more middle class women are applying: see PJ Parker, op cit, n 106, 117 (this was of the first 50 interviewed).

[121] A Kimbrell, "The Case Against the Commercialization of Childbearing" (1988) 24 Willamette Law Review 1035, 1044.

[122] M Stainsby, op cit, n 77, 7.

[123] Ibid.

[124] M A Field, op cit, n 22, 26.

[125] Ibid.

[126] 537 A. 2d, 1234.

[127] Op cit, n 81, 380.

[128] 537 A. 2d, 1235.

[129] 537 A. 2d, 1248.

[130] M M Shultz, op cit, n 81, 380.

[131] K Mack, "Surrogacy Reports 1 & 2: A Legal Evaluation"  (1990) Surrogacy: Bioethical Dilemmas in the 1990's, National Bioethics Conference, DBI Study Booklet No. 15 83-93.

[132] Harvard Law Review Editors "Developments in the Law - Medical Technology and the Law" (1989-90) 103 Harvard Law Review 1550.

[133] M J Radin, op cit, n 118, 1930.

[134] Ibid, 1931.

[135] R Rowland, " Surrogacy - A Feminist Perspective on Ethics" (1991) Surrogacy - In Whose Interest? Proceedings of National Conference on Surrogacy, Mission of St James and St John, M Meggitt (Ed), 69

[136] Proponents of surrogate motherhood would argue the situation of relinquishment in a surrogacy arrangement is much less coercive than the analogous situation of adoption.  That is, in the stereotypical adoptions, a young single mother finds herself p regnant but unable to care for the child either financially or emotionally.  This pregnancy thus has an immediacy which could lack informed and considered decision making.  The surrogate mother does not act under a similar pressure - she had time to refle ct upon the implications of the undertaking before deciding to conceive.  Further, it is argued that the state frequently sanctions a mothers conscious decision to relinquish her child in divorce and adoption - such decisions are generally only scrutinise d to determine whether they are voluntary and therefore in the child's best interests.

[137] S M Recht, op cit, n 114,1022-23.

[138] The risk of trauma to a surrogate mother is appreciable if the adoption context is any indication. See the Family Law Council, op cit, n 29, 64, citing a study by Winkler and Van Keppell on the effects of relinquishment on the mother.

[139] See generally Winkler & Van Keppel, "Relinquishing Mothers" in Adoption: their Long Term Adjustment (1984)

[140] A Kimbrell, op cit, n 121, 1043.

[141] Proponents of surrogate motherhood however, suggest that such arguments fail to acknowledge the diversity of women's interests, see D L Rhode, Justice and Gender: Sex Discrimination and the Law, Harvard University Press, Cambridge Mass, 1989, 225.   They point to the fact that women become surrogate mothers for a wide variety of reasons.  Thus, they conclude that surrogacy is not always orientated towards an act of love and generosity.  Indeed, women may become surrogates because they desire to exp erience the "perfect birth" or because they want to have the "experience of having a baby".  Surrogate mothering may also be an act undertaken to master unresolved feelings associated with prior losses such as abortions and forced relinquishments through giving the gift of a live baby.  Mary Beth Whitehead illustrates how the motivations behind desiring to become a surrogate mother are complex as "she was motivated to join the program in the hopes of giving the most loving gift to an infertile couple .... ... and felt that the surrogate's fee would assist her in providing for her children's long range educational goals" see 525 A. 2d 1128, 1142 (1987).

[142] E S Anderson, op cit, n 28, 84.

[143] M Meggitt, "The Dismantling of Motherhood: And One Woman's Story" (1991) Surrogacy - In Whose Interest? Proceedings of National Conference on Surrogacy, Mission of St James and St John, M Meggitt (Ed).

[144] C Sappideen, op cit, n 98, 95

[145] Ibid, 95-96.

[146] R Rowland, op cit, n 135, 70

[147] K Andrews, "Surrogacy: New Procedures - New Problems" (1989) 7 St Vincent's Bioethics Centre 1, 10.

[148] R Bailey-Harris, "Reproductive Technologies - Some Critical Perspectives" unpublished paper delivered at The First World Congress on Family Law and Children's Rights, 1993, Sydney Convention and Exhibition Centre, 63

[149] Ibid.

[150] M Stainsby, op cit, n 77, 6

[151] M M Shultz, Contractual Ordering of Marriage: A New Model for State Policy (1982) 8California Law Review 2, 209.

[152] Ontario Law Reform Commission, Report on Human Artificial Reproduction and Related Matters, Vols I & II, Ontario Government Printer 1985, Vol. 1, 3

[153] Ibid, 219

[154] Such as the Family Law Amendment Act 1987 (Cth) , Artificial Conception Act 1984 (NSW).

[155] M M Shultz, op cit, n 81, 341.

[156] V L Payne, "The Regulation of Surrogate Motherhood" (1986) 16 Family Law 178.

[157] Indeed, surrogacy has been described as " of the most generous and kind acts that a woman can carry out to help others. Pregnancy carries risks of common complaints, obstetric complications, and an adverse effect on health.  Pregnancy requires emotional and physical strength, tolerance and fortitude to endure for someone else.  In the sense of giving and the self sacrifice it is one of the most ethical acts one human can achieve." see C Wood, "Artificial Procreation" , Unpublished Paper deliv ered at The First World Congress on Family Law and Children's Rights, 1993, Sydney, 1626.

[158] J G Raymond, "Reproductive Gifts and Gift Giving: The Altruistic Woman" (1990) 20(6) Hastings Center Report 7.

[159] E S Anderson, op cit, n 28, 74.

[160] For example last year in Victoria there was a reported attempt at IVF altruistic surrogacy: see J Leeton & K Dawson, op cit, n 18, 586.

[161] C Rotherham, "Surrogate Motherhood in New Zealand: A Survey of Existing Law and an Examination of Options for Reform" [1991] OtaLawRw 4; (1991) 7(3) Otago Law Review,426.

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