Current legislation criminalising compensated surrogacy is doing little to stop Australian would- be parents entering into arrangements with overseas surrogates, and an urgent review of surrogacy-related laws is needed, according to research published by the Medical Journal of Australia.
Mr Sam Everingham, of Stethoscope Research, and his academic coauthors conducted an anonymous online survey of 259 intended parents in partnership with Surrogacy Australia, finding that only 9% were deterred by laws that make overseas compensated surrogacy arrangements a criminal offence.
"Of the 114 who actually lived in Australian states with criminalisation laws, 63 (55%) would enter an overseas surrogacy contract, based on a low probability of prosecution", Mr Everingham and his coauthors wrote.
"The high proportion of intended parents using overseas instead of domestic surrogacy arrangements shows that Australian public policy in this area is failing. "Legally accessible uncompensated surrogacy processes clearly do not meet the needs of many. "Further, state-based legislation criminalising overseas compensated surrogacy is not stopping the practice.
"It appears that the drive to have a child for people who need surrogacy is greater than the barriers erected by Australian legislators", they wrote.
Of the 259 respondents, 44% did not even consider uncompensated surrogacy - where the surrogate mother is only reimbursed for out-of-pocket medical costs associated with pregnancy and birth - in Australia.
The main reasons were that the surrogate might decide to keep the child, a belief that the process was too long and complicated, and having no one of the right age or life stage to ask; also, concern regarding the unfairness of carrying a child for no reward was often mentioned.
The average amount spent on uncompensated surrogacy still in progress was over $27 000, with significant amounts still to be incurred; while those who had completed compensated arrangements in India and the United States on average spent around $69 000 and $172 000, respectively.
The number of successful uncompensated arrangements conducted in Australia was just 21 in 2011, in contrast to over 270 babies born overseas to Australians in the same year.
The high costs involved meant that the processes of surrogacy, both overseas and in Australia, "discriminate against less financially secure Australians", the researchers wrote.
"By accessing unregulated surrogacy either at home or overseas, Australians forgo potential benefits, such as expert preparatory counselling, transfer of intended parents' names to the birth certificate, and legal recognition of parentage", the researchers wrote.
"However, unregulated surrogacy (in overseas settings) also has benefits, as it avoids the need for intended parents to find a surrogate themselves as well as the lengthy delays associated with ethics committee approval."
A review of public policy and legislation was badly needed, they concluded.
"Allowing surrogates to receive some compensation for the work of carrying a pregnancy might make it easier to recruit surrogates in Australia and avoid the need for people to undertake unregulated surrogacy overseas."