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This becomes complicated by the strict requirements of the Adoption Act 1984 (Vic) which prohibits private adoption and discourages adoption by relatives. However, it is frequently suggested that it is relatives who are most likely to participate in an altruistic surrogacy arrangement. 14.The situation is further complicated because the distinction between commercial and altruistic surrogacy is undefined in the legislation.
In particular the legislation in each jurisdiction: prevents advertising, thus effectively reducing the spread of people to whom surrogacy is available and preventing the emergence in Australia of commercial surrogacy agencies such as those which exist in the United States; renders surrogate arrangements unenforceable, with the result that the surrogate mother to either a commercial or an altruistic agreement cannot be required to relinquish custody of the child to the commissioning parents; and applies not only to the situation where a woman becomes pregnant pursuant to a surrogacy agreement but also to the situation where a woman is already pregnant and then agrees to give the child away. 10.
Additionally, the legislation distinguishes between the concepts of altruistic and commercial surrogacy as explained below. In Victoria, the Infertility (Medical Procedures) Act 1984 ("the Act") renders both commercial and altruistic surrogacy arrangements void and therefore unenforceable. The Act distinguishes between commercial and altruistic surrogacy in that criminal penalties are imposed upon the parties to a commercial surrogacy agreement while parties to an altruistic agreement are not penalised. 12.
The terms "partial" and "total" surrogacy reduce motherhood to an equation of gametes contributed and presume that providing original genetic material makes one a mother, while nurturing an embryo in one's body and giving birth does not. The terms "altruistic" and "commercial" surrogacy contain ambiguity.
Firstly, it is unclear as to when an altruistic arrangement becomes commercial - for example an arrangement may include payment of the surrogate mother's medical, travel and home-help expenses yet remain classified as an altruistic arrangement.
Although altruistic surrogacy arrangements have not been specifically prohibited by the Victorian legislation, the Act together with other pieces of legislation combine to render the successful completion of such an arrangement difficult.
For example, in relation to IVF surrogacy, s13(3)(d)(i) of the Act states that an IVF procedure must not be carried out unless the recipient is "unlikely to become pregnant as the result of a procedure to which this section applies".The strict interpretation of this section means that the surrogate mother must be infertile to receive IVF treatment and therefore precludes fertile women from acting as surrogates. 13.Further, if parties choose to employ artificial insemination to achieve their desired ends they will run into the unintended effect of s 10C of the Status of Children (Amendment) Act 1984 (Vic) which deems the resulting child of a surrogacy arrange ment to be that of the surrogate mother and her husband (if applicable) while denying the relationship between the child and the commissioning sperm donor. As a consequence, the commissioning couple must rely upon the relevant adoption and guardianship and custody statutory provisions to achieve a successful surrogacy agreement.Secondly, the distinction between the terms has been questioned. The use of the term "altruistic" implies that these arrangements are done purely for love and are therefore somehow more acceptable than an arrangement entered into for commercial reasons.However, the fact that the parties enter into a surrogacy agreement which provides for payment to the surrogate mother does not necessarily mean that the motivation behind the agreement is not altruistic.'Commercial surrogacy' is the term used to describe an agreement where payment is made to the surrogate mother.'Altruistic surrogacy' is the term used to describe the in formal arrangements where no money is paid to the surrogate mother.On a broader interpretation, it may be argued that these provisions aim to prohibit the payment for the use of reproductive services and thus payments not made directly for such services may not be penalised under the Act.Indeed the Waller report states that in an altruistic surrogacy agreement an arrangement that the surrogate mother's "medical, hospital and travelling expenses be paid would not result in [the arrangement] being labelled as commercial". However, the legislation in its present form remains ambiguous on this point.This insemination may be natural or artificial. Upon birth, custody is surrendered to the sperm donor.This has been termed "partial" surrogacy since the child is related to one of the commissioning parents - the biological father and the surrogate mother.