Surrogacy is a process whereby one woman (the surrogate) carries a pregnancy for another person or couple (the commissioning or intended parent/s). Surrogacy may allow those who are otherwise unable to conceive or carry a child to realise their desire to become parents.

Although surrogacy is well-known as one of the main issues of discussion in reproductive bioethics, there is nothing inherently ‘advanced’ about the concept itself. There are multiple references to its practice in the Bible’s Book of Genesis and there is documented evidence it was widely used in ancient civilisations as a remedy for childlessness. Traditional cultures also embrace it for this purpose.

Different types of surrogacy are recognised.

Traditional surrogacy

This involves the surrogate conceiving a pregnancy through insemination (either by sexual intercourse or assisted methods) with sperm from the commissioning male. Throughout history and across the world today, this is the most common form of surrogacy practised.

Gestational surrogacy

This involves the surrogate acting as a ‘gestational carrier’. Embryos are created with in vitro fertilisation (IVF) techniques from the sperm and oocytes of the commissioning parents, then transferred to the uterus of the surrogate in the hope that pregnancy will be achieved. This, in its strictest form, is the only type of surrogacy practised in Australia at the present time. In other words, it has not been possible in Australia to date to facilitate a surrogacy arrangement where gametes from a third party donor or from the surrogate herself are utilised in the creation of embryos.

In the united States and India, where surrogacy is largely a commercial enterprise, the surrogate is usually compensated for her services. It is not unusual for companies to suggest to prospective commissioning clients that their costs will be in the order of US$30,000 to $100,000, including a sizable payment to the surrogate, who may or may not be known to the intended parent/s. Surrogacy clinics overseas are also allowed to procure surrogates for their clients, a practice that is illegal in the Territory of ACT. In all Australian jurisdictions it is illegal for a surrogate to receive compensation. Before any proposed arrangement receives preliminary approval, it must be clearly evident that the surrogate has a purely altruistic reason for agreeing to carry a child for someone else. The commissioning parents may cover ‘reasonable costs’ (for example, medications, obstetric care, investigations and travel), but there must be no outright payment for the ‘service’ itself.

The first Australian case of a successful surrogacy arrangement occurred in 1986 under the care of Professor John Leeton at Monash IVF. unfortunately, following this case, the Victorian Government quickly legislated to prohibit surrogacy in all its forms. This legislation was later modified. In keeping with the policy that only those suffering infertility could access fertility services in Victoria, however, it was stipulated that surrogacy could proceed only if the surrogate herself was infertile. Success rates must have been very poor indeed!

Around this time, other State governments also moved to make surrogacy a criminal offence, until New South Wales and the ACT alone were without legislation of any kind. In 1994, however, the ACT Government set forth plans not only to illegalise surrogacy, but also to make discussion with a patient of the processes involved, grounds for a professional misconduct charge against the doctor responsible. The medical director at Canberra Fertility Centre, Dr Martyn Stafford-Bell, and others campaigned vigorously against this proposed legislation. When the bill came eventually to be tabled in the Legislative Assembly, the opposition and minor parties were able to move an amendment prohibiting commercial surrogacy, but allowing altruistic surrogacy within the ACT. This was documented in the Substitute Parents Agreements Act 1994.

With non-commercial surrogacy now excluded from prohibition within the ACT, a decision was made by Canberra Fertility Centre to assess the feasibility of starting a surrogacy program at the unit. After much consideration, a set of selection guidelines was established and policies set in place for mandatory psychological testing, legal advice and counselling to be sought by all parties involved. In 1995, the surrogacy program at Canberra Fertility Centre was established and has since treated patients from all states of Australia. Approximately 12 new ‘cases’ are seen each year, though a greater number of requests are received annually by the unit. Many requests are unable to be accommodated due to strict inclusion criteria.

Absence of a functional uterus is the commonest reason for seeking to enter the surrogacy program. Mullerian agenesis (or occasionally dysgenesis) is the most frequent indication, but previous hysterectomy (most often for carcinoma of the cervix, with preservation and transposition of the ovaries, or peripartum following massive haemorrhage) is the second most common cause. Other indications include medical conditions in the commissioning female partner that contraindicate pregnancy (but not standard IVF stimulation regimens) and cases of recurrent implantation failure and recurrent miscarriage.

At Canberra Fertility Centre, it is essential that the commissioning parents be either married or in a de facto relationship. Together, they must be able to provide suitable gametes for the creation of embryos. The commissioning female partner must be aged 40 years or less and the intended parents should have a reasonable expectation of a normal lifespan, at least until any child born as a result of the surrogacy arrangement should reach legal majority. The surrogate must have proven fertility and at least one child, although it is not necessary that she have completed her family. She should give a history of uncomplicated pregnancies, labours and births. Ideally, the surrogate is a family member or close friend who approaches the couple in the first instance with a genuine offer of help. Rigorous psychometric testing by an independent practitioner is undertaken by all members of the group (the intended parents, the surrogate and her partner) prior to their first appointment at the unit. They must seek full legal advice regarding surrogacy and the surrogate must be assessed, by an obstetrician and gynaecologist, as being fit for pregnancy. Written documentation of all such assessments must accompany the commissioning couple’s letter of referral. The four (or three if the surrogate is a single woman) then meet with the treating fertility specialist and clinical psychologist over two consecutive days at the Canberra Fertility Centre. If all criteria are satisfied, the unit will submit an application for independent ethics committee approval. This may take several months to be processed, but there is a mandatory three-month cooling off period for the group effective from the day of first meeting with the treating specialist.

As with all assisted reproductive technologies, results are predominantly influenced by age of the oocyte. In general, young women with congenital absence of the uterus and those with suspected implantation failure or recurrent miscarriage of unknown aetiology do well with surrogacy. Results for women with medical conditions precluding pregnancy are also reassuring provided oocyte quality is reasonable. Commissioning women with a history of radical hysterectomy and ovarian transposition do less well presumably because of subtle vascular damage to the ovaries.

Throughout the world and even within Australia, jurisdictions differ with respect to the status of children born as a result of IVF procedures where ‘donated reproductive tissues’ are used. This is an important consideration and those undergoing surrogacy must be fully informed of the legal implications of their treatment. In all Australian jurisdictions, it is provided that ‘…when a woman gives birth to a child…the birth mother is presumed to be the legal mother of that child…’ (Artificial Conception Ordinance 1985). This means that the intended parents in a surrogacy arrangement must apply to adopt their own genetic offspring. As well, for a number of years in the ACT, commissioning parents were unable to have their names listed on their child’s birth certificate. Despite numerous attempts by clinicians and patients to have the Ordinance modified, the ACT Government remained steadfast. Eventually, one Canberra couple took their claim to be recognised as their son’s parents to the Supreme Court. With the legislation in place, the judge was unable to grant their request, but was scathing of a government that had engineered a bill to allow surrogacy and then refused to move forward to acknowledge children produced by such a process. There was a frenzy of local media coverage and within a short period of time, the Ordinance duly modified. This resulted in the Parentage Act (ACT) 2004. The Act continues to provide that the woman giving birth is the child’s mother and her legal partner the child’s other parent, regardless of the genetic status of that child. It allows, however, for couples to apply to the court between six weeks and 12 months after the birth of a child, to have their names listed as the parents on that child’s birth certificate. Other States differ slightly in their legal handling of these issues.

Until recent years, there has been marked variance between the States with respect to surrogacy law. Decriminalisation of non-commercial surrogacy in Western Australia (2008), South Australia (2009) and Queensland (2010) has meant that enabling legislation now exists in all of these States, as well as in Victoria, Tasmania and the ACT. In New South Wales, there is no specific legislation, but in 1998 the New South Wales Law Reform Commission Report recommended that: ‘…commercial surrogacy be prohibited by law and non-commercial surrogacy not be encouraged’. The report also suggested invalidation of ‘surrogacy contracts’ and sanctions against those involved in ‘soliciting, servicing, payment or promotion of such contracts’.

Throughout Australia, the legislation is now relatively uniform. While altruistic surrogacy in general is allowed, the restrictions governing this practice vary across jurisdictions. Traditional surrogacy is permissible in some, for example. As well, the use of ‘third party’ sperm and/or oocyte donors is likely to become accepted practice within a surrogacy arrangement. This will allow both women and men in same sex relationships, commissioning females with ovarian failure or males with azospermia, and individuals with androgen insensitivity syndrome (AIS) to access surrogacy services within Australia. Those who oppose such moves express concern about increased rates of ‘refusal to relinquish’ when the surrogate is both the genetic mother and the gestational mother, and the complexity of ‘too many parents’ in the mix when third (and fourth) parties are involved.

Ultimately, it will be for individual units and their ethics committees to assess risks and decide what services they are going to offer. Commercial surrogacy, however, is prohibited.

The recent legislative changes which have made the practice of surrogacy accessible to patients throughout Australia, are most encouraging. There is now a committee of Federal and State Attorneys-General attempting to produce uniform laws across all Australian States and Territories. When this is achieved, all surrogacy patients should be able to be treated in their home State. Patients, who for the past 15 years have travelled across the country to have access to surrogacy within the ACT, assure us this will be a major coup for those facing a barrage of physical and emotional stressors in the hope of achieving a successful pregnancy through surrogacy.