The Link


September 2018

This month we want to explore the issue of surrogacy. While not a new topic, it is one that we are seeing more of in our practice, and is far more complex than many people think. Surrogacy is not just about a woman carrying a child for a loving infertile couple, it is also, among many other things, about the rights of children born of surrogacy, the health and safety of the surrogate mother, and the rights of the surrogate parents. Learning more about the current state of affairs, nationally and internationally can only help us better serve our clients. 
In this edition you will find answers to some of the most common questions about surrogacy, links for more reading should you want to explore the subject further, and finally "Chloe's story" - a donor conceived young woman and her search for her identity.
A special thank you goes out to our colleagues at the ISS-International Reference Center, for helping us research this edition of The Link.

Sylvie J. Lapointe
Director of Services


First off, what are Surrogacy Arrangements? 
Surrogacy involves multiple parties and can
occur across borders – raising, inter alia,
issues of: the legality of the arrangements
in either the State in which the Surrogacy
occurs, or in the intending parents’ home
State; how parentage/parental responsibility
will be determined; and the immigration
status of the child. Domestic legal
responses to surrogacy differ widely. In some States the practice is regulated, in some it is expressly prohibited, whilst in others it is not legislated for at all.  Jurisdictions which provide for surrogacy, differ on appropriate practices, such as payments to surrogate mothers beyond reasonable pregnancy-related expenses (so called ‘commercial surrogacy’).  can a surrogacy arrangement constitute the sale of children; and how can the human dignity of those involved be protected? Surrogacy involves the carrying of a child by a surrogate mother, with the intention that another person or persons will be the parent(s) of that child. Over the past three decades surrogacy has become an increasingly popular method of alternative reproductive technology. It is, however a practice that raises a number of human rights, ethical and legal questions – at the forefront being:
Why might surrogacy endanger the best interests of the child, and breach broader human rights standards? Varied domestic legal approaches, coupled with a complete lack of an international legal framework as well disregard to fundamental human rights, have led to unsound practices. Intending parents often leave their home State for surrogacy procedures, purposely choosing ‘surrogacy friendly’ jurisdictions. In this environment, an extensive international commercial surrogacy market has developed, with it an inherent risk of human rights abuses. The Committee on the Rights of the Child has referred to unregulated surrogacy as constituting the sale of children. The UN Special Rapporteur on Sale, Trafficking and Exploitation of Children, is dedicating her 2018 report to this issue.  Exploitative surrogacy practices jeopardise the human dignity of all parties. Surrogate born children risk being sold, may face statelessness, may be abandoned by either the intending parent (for whom there are no standards of suitability assessment practices) or the surrogate mother, and uncertainty around formal parentage. Women in developing countries are particularly at risk of exploitation.

What is ISS’ Role in Surrogacy?  ISS is coordinating an Experts’ Group working to address the risks associated with surrogacy. ISS’s work is supported by the HCCH, and is complimentary to the HCCH’s own work on parentage/surrogacy (a project constrained by the limits of private law). The expert group includes key children’s rights and human rights bodies, including UNICEF and the UN Special Rapporteur on Sale, Trafficking and Exploitation of Children. Experts represent various geographical regions and intellectual standpoints, coming from government, academic institutions, civil society, and national, regional and international organisations. The group has identified an urgent need for comprehensive universal principles, considering surrogacy from an international and child-centered approach, and grounded in International Human/Children Rights Law and standards. 
Because, we always want to know more:
Dogmatic positions: A threat for the rights of children and their protection?

Available 2015 statistics: A new perspective on the numbers…

Child protection up against new technologies?

Chloe shares her story…

There are an estimated 60 thousand donor- conceived people in Australia. It is also estimated that around 90% have not been told that they are donor conceived. I am one of the few donor conceived people, who was told very early on in life, and have had time to process what this means for me. Donor conception is when a person is conceived using the help of a sperm, egg or embryo donor. In my case, a sperm donor had aided in giving me life.
I share 50% of his DNA, but to me, he was a generous stranger. It was as if he was a blank canvas, and no matter how much I tried to paint a picture of who he was, I just could not. Half of my identity was unknown and this led me to feel a range of emotions including anxiety, loneliness, disconnect, fear of the unknown and also curiosity. These feelings have had an ongoing impact on me in my life.

Who am I?
Even before being told, I had become aware of the vast differences in my physical appearance as opposed to those of my parents. My dark curly hair, brown eyes and pale skin in comparison to my blue-eyed, tanned skin and light haired parents. Even as a child, this made me question why I was so different to those around me. It was often something I would lay in bed at night thinking about, and wondering what my donor was doing at that moment in time.
Through my teenage years, I began to develop into an outgoing individual, who loved to perform, sing and dance. This was a passion that was not shared by anyone else in my family. My black sheep status drove me further into the curiosity of where I had come from. I knew I already had a Dad, who I loved and cared very much about, but the void of having something missing was just too strong not to pursue.

Starting and persevering with the search

I began the search for my donor at the age of 18 after a long list of health problems and no medical history. I only had three blood relatives at the time and this was not sufficient for my medical history, let alone for my children in the future. A constant gamble with any donor conceived person’s health in not knowing what health issues may lie around the very next corner. After a long difficult process in searching for my donor through Births, Deaths and Marriages, I was  told that he could not be found. It felt as if my world was crumbling away, taking pieces of me with it. I had waited for so long to piece the puzzle of who I was together. My donor’s file was kept only a few hours from where I lived, and there it sat. The clinics had a hold of the critical information relating to my life, my heritage and my DNA, yet I was denied access to this file. The frustration that comes with this was, at times, unbearable.  I did not admit defeat. All I was searching for was the opportunity to ask my donor if he wanted contact and, if so, the chance of a friendship with him. If he was not open to contact, I would respect this and at least I could live with myself knowing I had done everything in my power to ask the question. Life is so short and I had always feared that I would have regrets if I left the search too late.

Unexpected discoveries

Luckily for me, after contacting my clinic (Melbourne IVF), a lovely woman was willing to help me. Just a few weeks later, I received some news, but not exactly the news I was expecting. ‘Chloe, someone has been in contact with us with the same questions as yourself, he is your brother’. My face lit up and tears filled my eyes. I had never considered siblings. I was then told that there were 10 siblings born as a result of his donation and one wanted contact with me. In meeting my brother, this really answered a lot of my questions. Same personality traits and interests, and I had gained a great new friend and a brother. In finding my brother, this opened up a whole new curiosity for me surrounding my other siblings. What where their lives like? Were they anything like me?

Almost 2 years later, after many phone calls, e- mails, and hassling multiple people for help, my donor was found. Next came the  big question: did he want contact? Thankfully, it was a yes! Ken had called the clinic in 1993 to enquire if there were any successful pregnancies from his donation. He had been told that no children were born when in fact there were 11, including me! Ken and his family invited me to Adelaide to meet his beautiful wife and four children, I had more siblings and for the first time sisters!

(this is not a picture of Chloe and her siblings)

''Meeting and forming a relationship with my donor and his family has definitely changed me as a person. I am no longer angry at the world, my anxiety has improved, I know where my interests and personality have come from, and I finally have an understanding of exactly who I am. The missing pieces are slowly coming together and my donor and I are currently searching for the 9 other siblings together, one of whom has been recently found in the last few weeks, another beautiful sister! Ken and his children are all musically talented and sing just like me, something I have often wondered about. To my surprise, my donor is also a teacher, just like me along with two of my siblings.''

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