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A growing number of Australians are using overseas surrogates to bear children for them, despite the potential complications.
It has taken Arielle the best part of a decade to become a mother. She tried for years to conceive naturally, endured multiple failed rounds of IVF, and made a foray into the world of adoption, only to be put off by the onerous waiting lists. In the end, with time no longer on their side, the 40-year-old HR contractor and her husband took what they saw as the only option left open to them: the illegal one.
Through a clinic in New Delhi, the couple engaged an Indian surrogate to carry for them what turned out to be twins. Entering overseas commercial surrogacy arrangements has been a crime in Arielle's home state of NSW since last year. It is also illegal in Queensland and the ACT. In NSW, the offence can attract a hefty fine or a two-year jail sentence, but Arielle is one of a small army of Australians choosing to flout the law.
Surrogacy is not a process Arielle ever thought she would get involved in. "I remember thinking, 'Gosh, I can't imagine someone else carrying a baby for me.' " Now, as she swims in the ocean and walks her dog to pass the time while awaiting news of the arrival of the twins, she feels a little like "Alice in Wonderland, about to go down a rabbit hole".
With no stretch marks, indigestion or swollen feet to contend with, Arielle's mind often turns to how what she is doing involves "bending some rules". "Is it culturally that I'm driven to want to have a family? The fact that I have to break the law to satisfy that desire is pretty outrageous to me."
The Indian surrogate was impregnated with embryos created from Arielle's husband's sperm and an Indian donor's eggs. It's what Arielle jokingly refers to as a "combo deal". Each year, hundreds of Australians are entering into similar arrangements. In some cases, the commissioning mother's eggs are used. An estimated 250 babies a year are being born to Australians in India through surrogacy, about 40 in Thailand (a fast-growing market) and about 35 in the US.
Some Indian clinics say they will only do business with Australians from those states and territories where overseas commercial surrogacy is permitted. Megan Sainsbury is sceptical about those assertions. The international client manager for SCI Healthcare, the largest surrogacy clinic in New Delhi, says that "the majority of people who are aware of these laws ignore them". Sainsbury says for most people, "having a child is worth any kind of consequence that any government can throw at them".
And here's the deal. While Queensland, the ACT and NSW prohibit the use of commercial surrogates overseas, it is the federal authorities whom the commissioning parents have to approach to get citizenship and a passport once the baby is born.
It's a situation law professor Jenni Millbank describes as "schizophrenic". The family law specialist from the University of Technology Sydney finds it absurd that "we have a federal approach, with the Department of Immigration and Department of Foreign Affairs providing travel documents and passports and granting citizenship by descent in order to get those children back into Australia. Then parents go to state authorities, who say not only are you not the parent of this child, but you've committed a criminal offence as well."
The legal situation is murky at every level. In a recent Family Court case in Sydney, the judge granted parental responsibility for twin babies to a couple who had entered an illegal surrogacy arrangement in Thailand, because she deemed that was in the best interests of the children. The judge ruled that the evidence they had presented in the case could not be used against them in any future criminal proceedings.
Arielle is not taking any risks: "I've been told in no uncertain terms that we must not go anywhere near applying for a parenting order [from the Family Court], because that's where people get into hot water." A heterosexual couple using an Indian surrogate can have both their names on the birth certificate, which is not always the case in other countries. However, that doesn't mean the couple will be considered the legal parents of the child under Australian law, a fact that leaves many people feeling uncertain about what rights they would have if, for example, the child ended up on life support, or became the subject of a custody battle. But Arielle says that fact does not bother her: "I don't need anything else to tell me I'm a parent than to have these babies in my arms." Arielle also carefully looked into which clinic to use in India and is pleased with her choice of SCI Healthcare. She says she is horrified by reports of "baby factories and exploitation", but is as confident as she can be that the money her surrogate is paid will transform her life.
Indian surrogates receive between $6000 and $8000, a handsome sum in a country where many earn just a few dollars a day. There are questions, however, about just how informed the consent is of some of the women entering into these arrangements. Some are widows or outcasts, and many are extremely poor, even by Indian standards.
Sai Raj Jaiswal, the head of legal services at the Kiran Infertility Centre in Hyderabad, rejects the suggestion that surrogates are being treated unethically. "If these women are getting good money, a good lifestyle for their family, a good future for their family, I don't think it would be exploitation," he tells me.
Yet there are also ethical issues about the number of embryos transferred at one time to a surrogate. While these days Australian IVF clinics will generally only transfer one or two embryos, it's common for three or four embryos to be transferred in an overseas surrogacy arrangement. If they all take, the clinic asks the intending parents for permission to medically terminate one or more of them.
Some 30 to 40 per cent of Australians using overseas surrogacy arrangements are gay men. Some of them meet regularly with their charges in a Sydney park on Saturday mornings. Among the group is Sam Everingham, president of the lobby and support group Surrogacy Australia, who with his partner has two baby girls born through surrogacy in India. Their contract was signed before the NSW state laws banning such arrangements came into force in March 2011, but the law isn't deterring others from coming after them. A few years ago, most of the people in a group such as this one would have become parents through co-parenting arrangements with friends, often lesbian couples.
"These days, surrogacy has become a more popular option because it removes the potential difficulties of co-parenting," Everingham says.
It's not just couples accessing the services, either. A small number of single gay men are using overseas surrogates to bear children for them. That could be a short-lived trend, with moves afoot in India to tighten access to surrogacy. Legislation is being considered which could make surrogacy only available to married couples, and to those who are able to provide documentation from their home country stating that surrogacy is permitted there.
Queensland couple David and Dean first mooted the idea of starting their own family five years ago. Today, David, an electrical engineer, is a stay-at-home dad to three girls under the age of three, while his partner, Dean, a fellow engineer whom he met in college more than 20 years ago, goes to work. David laughs the nervous laugh of a new parent when I ask him how he's coping. "Well, it's a journey and I'm learning every day," the 44-year-old says. But their oldest is a "happy little girl" and a good sleeper to boot, and David thinks they are more or less "in the groove".
All three girls - a toddler and baby twins - were born using donor eggs to an American surrogate, with whom they have regular contact. Unlike in India, where contact with the surrogate is generally not facilitated, this is a typical scenario for Australian couples and American surrogates, and the reason the Queensland couple decided to go through the United States, despite the higher costs involved. (The overall cost of using an Indian surrogate can be $30,000 to $50,000. In the US, the costs can rise to $250,000.)
David is confident that he has not exploited his surrogate or "commodified" his children. The girls will grow up knowing their surrogate mother, and when they're older will have the opportunity to find out who the egg donor was. The legal situation does frustrate him: "That's the part that hurts, that what they're really saying is, 'Your little girls are not really wanted and valued here in Australia, and you don't have a legitimate family.' "
American surrogates are typically paid between $30,000 and $50,000 for their trouble. Not an insignificant sum of money, but hardly life-changing. In fact, many clinics will only approve a woman as a surrogate if she can show that the payment will not be her sole form of income. So just why would anyone agree to carry someone else's child?
Part-time Californian college teacher Kelly Rummelhart is attractive, bright and unflappably upbeat about her role as a surrogate for five children. Now in her late 30s, she has had two sets of twins and one more child for three different couples, and that's on top of her own three children.
"The greatest gift I was ever given was being a mother," Rummelhart tells me on a visit to Sydney. "I find it a shame if there's people who want to be parents, who for one reason or another can't be, and so I figured, 'Well, I've got this uterus that's giving out these beautiful babies and so why should I not be able to share that?' " Rummelhart has an ongoing relationship with the families she has carried children for, but stresses she does not feel like a mother to the children, more like an auntie or a close family friend.
Another Kelly, Kelly Hillsley, is one of the relatively few Australian women who have acted as a surrogate. Commercial surrogacy is illegal everywhere in Australia, apart from the Northern Territory, which has no laws governing surrogacy. What is known as altruistic surrogacy is allowed, although some states prohibit or are considering prohibiting gay or single people from entering such arrangements.
At an information evening organised by Surrogacy Australia, Hillsley captivates the audience with her story: "For seven years I've been hearing the question, 'How can you do it? How do you give up a baby?' Well, for starters, it's not giving up a baby; it's giving back a baby. I was just minding him for a while. His Mum had some issues and she couldn't look after him. But I could, so I did." In fact, Hillsley, who lives in western Sydney, says one of the greatest fears of surrogates is that the commissioning parents will have a change of heart and the surrogate will be left holding the baby.
The opposite situation, where the surrogate wants to keep the baby, is surprisingly rare. One infamous case, that of baby Evelyn, did end up in Australian courts in the late 1990s. The commissioning parents were eventually ordered to hand over the baby to the surrogate, a woman who had been a good friend of theirs and who was the genetic mother of the baby. What is referred to as "traditional surrogacy", where the surrogate's own eggs are used in the pregnancy, is not common, precisely because of the emotional complexities of the surrogate also being the biological mother of the child.
After the information evening, Hillsley introduces me to Lisa Barton and Kryssie Massarella. Barton, 30, from western Sydney, has always known she could not bear children: she was born without a uterus. But for the first time in her life, she hopes she might become a mother, after all. On an online forum she met Massarella, a motorbike instructor from the Blue Mountains west of Sydney, mother of four children and, in surrogacy speak, "gestational surrogate wannabe".
The women have high hopes, but the odds are stacked against them. To access surrogacy treatment from an IVF clinic, they have to undertake hours of psychological assessment and legal counselling. If they get through that, any embryos have to be frozen for four months, then screened before implantation. There are more hoops to jump through to transfer the parentage to Barton and her husband of any baby born.
Then there is the very real possibility that Massarella won't fall pregnant. According to Surrogacy Australia, more than 80 IVF cycles a year are undertaken in altruistic surrogacy arrangements, but only 10 to 15 babies are born.
The uncertainty, the red tape and the costs are taking their toll. So much so that Barton and Massarella have considered going overseas for IVF treatment. For family law expert Jenni Millbank, there is a great irony in this situation. The states and territories, she says, "have made surrogacy very hard to access. They've done things like banning advertising. They've made rules around things like payment extremely stringent, and so it's in some ways easier or more accessible for some people to travel overseas for surrogacy treatment, in commercial arrangements."
The NSW Surrogacy Act will be reviewed in 2014, but surrogacy advocates hoping for change could be disappointed. The state's Attorney-General, Greg Smith, says bluntly that he is "opposed to commercial surrogacy anywhere".
Smith says commercial surrogacy is not in the best interests of the surrogate or the child, saying simply that such arrangements are "unethical". Yet he doesn't appear particularly vexed when I put it to him that the law banning the use of paid surrogates overseas is being flouted, stating: "It's hard enough to stop things happening here, where the urge for parenthood is very strong." Nevertheless, Smith says, if evidence is found of the law being breached, or a complaint is made, it will be followed up.
As Smith speaks, Arielle and her husband are in New Delhi arranging passports for the twin boys their surrogate has now given birth to. Shortly afterwards an email lands in my inbox: "Yippeee - Homeward Bound", the subject line reads. The bureaucratic boxes have been ticked and the new family will be flying out of India that evening.
It has been a stressful and exciting time for them, but already the grind of daily life with small children is starting to kick in. Sometimes the boys sleep well but, like most babies, sometimes they don't. That, the new mum says, "is when we really feel tested, and have to remember how desperately we wanted them in our lives".
Barbara Miller's ABC radio documentary Surrogacy Secrets will be broadcast on RN on December 27, at 5.10pm.
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