The heart-rending story of baby Gammy has captured the attention of Australia, and of the world. While commercial surrogacy in Thailand is not approved of, it’s also not illegal, though the case of baby Gammy, which has recently exploded across global media, could change that.
At significant risk, Gammy’s Thai surrogate mother, Pattharamon Janbua, has reported that Gammy’s Australian biological parents, the Farnells, took home his healthy twin sister and abandoned their disabled, now eight-month-old son. Gammy has Down syndrome, a congenital heart condition, and recently developed a life-threatening lung infection. Now it has been revealed that Mr Farnell has a history of multiple convictions for child sex offences; child protection authorities are currently assessing his suitability to parent Gammy’s sister.
Gammy’s story highlights several areas of human rights concern, including commodification and trafficking of children in the baby market created by demand from well-off westerners; exploitation of vulnerable young women and their children; and denial of children’s rights to have information about or ongoing contact with their surrogate or biological parents and siblings.
Sadly, such concerns are inevitable in situations where ethically dubious practices are not expressly prohibited, monitored and regulated. This is particularly (though not exclusively) the case in developing countries where conditions are ripe for unscrupulous people seeking to profit by exploiting those living in poverty.
Such concerns are also variously associated with overseas commercial anonymous donor IVF and intercountry adoption. These practices have been popularised through mainstream Australian media, whereby an endless parade of physically and socially infertile women and men are portrayed as desperate to become loving parents, or overjoyed by achieving parenthood after harrowing journeys.
Despite a litany of overseas child abduction, child trafficking and ‘voluntourism’ cases in recent years, journalists rarely equate such exploitation and human rights violations with the overseas adoption and surrogacy practices they promote in their human-interest stories.
I empathise with infertile people, irrespective of gender orientation or marital status, not least because I experienced fertility problems myself. But as a social worker and an adoptee, I empathise considerably more with the children: they have no choice regarding the circumstances of their conceptions or adoptions, and will likely suffer the detrimental psychological impacts of being separated from their families of origin or surrogacy for their entire lives.
Australians cannot legitimately claim ignorance regarding these matters. In Australia, it is illegal for money to be exchanged to procure a child for adoption; to pay for an ovum, sperm or embryo for the purposes of creating a child; or to engage a surrogate to conceive a child.
Moreover, altruistic surrogacy and donor IVF are both legal and carefully regulated. The state- and territory-based local and intercountry adoption programs are regulated within the best practice framework of the Hague Convention on Protection of Children & Cooperation in Respect of Intercountry Adoption, to which Australia has been party since 1998.
It is illegal to privately arrange an adoption in Australia. In some Australian states, it is also illegal for citizens to travel to another country to engage in commercial surrogacy. But it is legal for Australians to adopt a child when living overseas, thus enabling Australians to bypass the strict regulation associated with Australia’s domestic adoption laws. As a result, the number of expatriate adoptions now exceeds that of domestically arranged intercountry adoptions.
It is almost as though Australians have already forgotten the recent state, territory and national apologies for the unethical and damaging practices of coerced separation of children from their families of origin through past assimilation, adoption and child-migration policies. Certainly, Tony Abbott appears to have forgotten his own comments made as Opposition Leader in response to the bipartisan national apology made in March 2013 by Prime Minister Julia Gillard to those affected by forced adoptions in Australia, about which he acknowledged he still had things to learn. Then in December 2013, as a new prime minister, Abbott made the surprise announcement of his intention to make it much easier and faster for Australians to adopt children from overseas.
Intercountry adoption in Australia has always been intended as a last resort – a family placement program for vulnerable children from less affluent countries. It was never meant to be a family formation service for well-off Australians. Significant delays now experienced in processing applications in these countries are not because of excessive bureaucratic ‘red tape’ or an ‘anti-adoption’ culture among social workers delivering the program; rather, it’s because countries of origin are identifying fewer children needing adoption due to improvements in their domestic child support and alternative-care programs. Consequently, there is a significant mismatch between the children sought by Australians – usually, healthy infants – and those identified by countries of origin as requiring overseas adoption – mainly older children or those with additional developmental, physical or psychological needs, like Gammy.
We need laws prohibiting Australians from engaging in commercial surrogacy overseas and commercial donor IVF, just we have domestically. And we should oppose Mr Abbott’s intercountry adoption ‘reform’, which will open up expatriate adoption in countries not subject to the safeguards of the Hague Convention – including the proposed amendment to the Australian Citizenship Act regarding intercountry adoption, which is currently before parliament.
As a social worker in Victoria’s intercountry adoption program for 11 years, I am more aware than most how difficult it is to ensure the best interests of children in countries that are signatories to the Hague Convention, let alone in non-party countries.
Gammy’s story poignantly exemplifies the case against overseas commercial surrogacy. It also represents a watershed test for Tony Abbott’s leadership. Will he choose to strengthen and unify Australia’s commercial surrogacy laws to also protect the rights of vulnerable women and children, like Pattharamon Janbua and Gammy? Will he acknowledge the parallel concerns with overseas commercial donor IVF and expatriate intercountry adoption practices? Or will he stubbornly continue pursuing the pro-adoption agenda, thus enshrining the desires and interests of prospective Australian parents as entitlements?
And importantly, will he take responsibility for the new generations of Australians psychologically damaged from the institutionalised violation of their human rights?