[This is a corrected version of the post. Additions in square brackets, deletions are lined through.]
Australia has criminal laws prohibiting [payment of money to facilitate]
use of surrogacy, including overseas surrogacy. [As the first comment below notes, altruistic surrogacy is legal. This is an important distinction,] In other words, an An Australian who [pays a surrogate overseas] goes abroad to use a surrogate might be subject to criminal prosecution and a potential sentence of two years in prison. This stands as a pretty strong statement against [commercial] surrogacy.
But how does it really play out? Here’s a story about a case that offers a look at why the law might end up being difficult to enforce. Mr. and Mrs. Dudley tried IVF for ten years with no success. When they were both 42 they turned instead to surrogates in Thailand. They used Mr. Dudley’s sperm and eggs from a third-party. Three baby boys were born to two surrogates. [Their surrogates were apparently paid.]
(And here’s a little side discussion–the three boys were born on the same day and are formed from eggs and sperm from the same two people. Are they triplets? We’ve had this conversation before, I think, though with twins.)
After the boys were born the Dudleys brought them back to Australia. And that’s when the legal proceedings begin.
The first crucial point of the story I linked to is that the Dudleys get to raise the children. It is actually hard for me to see what alternative the court had on this point. I suppose it could have declared the child’s wards of the state or put them up for adoption. But Mr. Dudley is genetically related to the children and so has a pretty strong claim to some protections of parenthood. And there isn’t anyone else standing in line wanting to raise these children. So it seems that allowing the Dudleys to raise the children is a pretty obvious course for the court.
Then what about the criminal penalties. Let’s assume the Dudleys broke the law. Should they be sent to jail? That accomplishes the punishment goal and perhaps deters others from doing what the Dudleys did, but again, what about the kids? Where are they while their parents are in jail?
Maybe the Dudleys should be fined? But you wouldn’t want to fine them so much that they’d be seriously impoverished–because again, what about the three kids? A lesser fine? Well, presumably the Dudleys have already laid out a lot of money to have these children, so what’s a little bit more?
All of which is to say, it seems to me it might be hard to enforce the criminal law here. And if it isn’t enforced, then what’s the lesson for everyone watching?