Victoria's legislation promises ethical and medical support.
WHEN the Victorian Government finally tabled its legislation for assisted reproductive technology last week, legal surrogate pregnancy came one step closer, along with access to IVF for gays, lesbians and single people.
Both major parties have said they will allow a conscience vote on the legislation, which is based on an extensive Law Reform Commission process.
While the MPs examine their consciences, they might like to consider what's gone on in mine, and those of people like me, over the past four years. That's how long I've been waiting for those documents to hit the table in Spring Street. Four years ago this November, I was diagnosed with breast cancer. The news came on the first birthday of my son, himself an IVF baby. Our plans for a second child were thrown into disarray as I plunged into
surgery, chemotherapy, radiotherapy and long-term hormonal treatment. But unlike many women with cancer, I was lucky enough to already have eight embryos in storage from my IVF treatment. The door remained open.
Those embryos, stored in a supercooled vat in East Melbourne, have been hostages to the political process ever since. (The commission began looking at the issue way back in June 2002.)
My treatment — and the continuing doubt over the role of hormones in triggering a recurrence — put a five-year and possibly permanent bar on my carrying a baby myself. As the mother of a small child, I don't have the right to increase the risk to my life; I have a duty to survive. But I was getting older — I'm now 42 — and the gap between my son and any siblings was growing daily.
Surrogacy seemed like the obvious solution, but as the Law Reform Commission observed, Victoria's laws were inconsistent to say the least. A surrogate would have to be infertile herself, with an infertile partner, and technically, moving the embryos interstate or overseas for treatment would be illegal if the purpose of the move was surrogacy.
If the legislation now before the State Parliament passes, I will be able, if I can find the right person, to "commission" a surrogate pregnancy — to bring one of those frozen embryos into the light legally.
But even when the new laws take effect, I'm not sure that I'll do it. Because I have, in reality, had the option of surrogacy all along.
For those four years, I've been noticing something: even with the laws as they are, people do it. A gay male Victorian couple who took a filmmaker to the US to document their "journey" did it (and have gone back for a second child). A senior federal Labor senator and his wife went from Victoria to NSW to do it, although their particular circumstances differed from mine.
People do it all the time: people with money, that is. Paid surrogacy is a reality in not only the United States, but in shadier operations in Eastern Europe and the Third World. And on the altruistic side, some women are carrying "traditional" surrogacies via self-insemination, often under the radar of the authorities. When it doesn't require government resources and hospitals, you can get away with that.
My IVF experience, not to mention experiencing cancer, has taught me one thing: it's futile to compare one person's pain and needs with another's. But when I think about using a surrogate — the usual term is "commission" but I can't shy away from the knowledge that we'd be using another person to produce our child — I also think about the risks.
In Australia, surrogates are generally women who already have children, and I am all too aware of the horror of a child losing its mother. Under the proposed Victorian law, surrogates cannot be paid (apart from defined expenses), and while I would only want to work with someone who had altruistic reasons for helping me, I would, frankly, prefer to be able to pay some amount, if only to allow her to take enough time off work, to hire a cleaner, have help with her own kids, and to use private medical facilities.
Pregnancy is hard work. This is not Baby Mama: this is real life.
What the proposed Victorian legislation does is to recognise that surrogacy is something that is already happening, and to bring it into our excellent assisted reproductive technology system, with its ethics committees, dedicated counsellors and stringent medical standards.
But the decision to be, or commission, a surrogate, will still be made one person at a time.
The proposed laws will open up access to assisted reproductive technology, not just to married heterosexuals like us, but to gays, lesbians and single people. I welcome this because I believe they have the right to that access, and I welcome it all the more because their battle has become my battle too.
At some level, too, I am pleased that this Government, after years of this issue being on the backburner, has had the political will to reject the campaigners who tried to dog-whistle homophobia by focusing on the "gay IVF" angle and pushing my family's situation, and those of other heterosexual families, aside.
Conscience, as the MPs well know, is an individual thing. Allowing people to act according to their consciences is to treat them as adults, and adults who can be trusted to make the right decision. The lower house of the Victorian Parliament has already paid Victorian women and their partners this compliment in regard to abortion law reform. When it comes to deciding on surrogacy, I look forward to the honourable members extending the same respect to me, my husband and to others in our situation.
Jenny Sinclair is a Melbourne writer.
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