A lifelong friendship and a mission for change

“Legally, we didn’t have to extradite Angus in Australia [the Peaches]. Even though he was her child legally, he was ours legally, but the worrying thing is that we didn’t have to take him with us either,” McCloy said.

“So if we hadn’t taken him and the Peaches had decided they didn’t want him, he might have had to have childcare. Legislative changes need to be made, not only to protect the intended parents and surrogate mothers, but at this point in Australia there is absolutely no protection for the child.”

Just last week, Angus became legally part of the Peaches family – taking NSW Supreme Court approval nine months. And even then, the records list Edwina as his father and Charlie as his mother, so they have to wait for the records to be reissued again.

“I couldn’t even take Angus to his injections because he wasn’t on our Medicare card. He’s our son, he’s our physical child, but for that we had to take a giant step,” said Edwina.

“And if anything happened to him in the meantime, Jen and Ewen had medical powers of attorney and they’ve already done so much giving birth to him that it shouldn’t end up on them, he’s our child.”

The women hope they can make a difference in NSW first and then expand their campaign to other states.

The two will tell their story to the state government this week when they meet New South Wales Attorney General Michael Daley, who told it The sun herald he was willing to listen.

Surrogacy in NSW is regulated by the Surrogacy Act 2010. It was last subjected to a statutory review in 2018. A spokesman for the attorney general said the laws included “the [parties’] Ability to change their mind about continuing the arrangement after birth.”

“But the thing about Australia is that as a surrogate mother and intended parents you go through all that counseling and you have all that legal work done before you get to the point where you implant an embryo, so I don’t see why you not being able to do all the paperwork and why the moment the child is born cannot legally be the intended parent from that moment on,” McCloy said.

“It’s not like an adoption; Nobody enters into a surrogacy agreement without being clear about who the intended parents are and who owns the child.”

Alice Clarke, who became the first Australian child to be recognized as having been born through surrogacy in 1988, takes the same view.

“Right after I was born, they did it [surrogacy] explicitly illegal and in Victoria they didn’t legalize it again until I was about 19 and in NSW it was a little earlier but not by much,” Clarke said.

“One of my earliest memories is of a group of religious people on TV saying, ‘Alice Kirkman.’ [maiden name] is a person who many believe should never have been born, and remained so for years.”

Clarke, a freelance journalist, said the “biggest problem” for surrogates and intended parents are “outside people” who weren’t involved in the process and who weren’t likely to face challenges that prevented them from carrying a child.

“But the fact is that the children are fine. I have never met an angry surrogate child or a person who regrets being born to a surrogate,” she said.

“Everyone has the right to have a child if they want one and things need to change to make that possible and to make the transfer easier [parentage] because that reduces the mental and financial impact on everyone involved.”

By 2014, Clarke was against paid surrogacy, but that changed when she saw the case of baby Gammy.

Gammy and his twin sister were born in Thailand in 2013 through surrogacy to intended parents from Bunbury, Western Australia. When Gammy was born he was diagnosed with Down Syndrome and left with his surrogate while his genetically healthy sister Pipah returned to Australia with her intended parents. The case caused international outrage.

“I realized that people will use commercial surrogacy and if we regulate it in Australia we can ensure there are fewer opportunities for abuse. We can make sure everyone involved is safe,” Clarke said.

Surrogacy attorney and former surrogate Sarah Jefford said a cap on compensation could be introduced to reduce the risk of exploitation.

“In Mexico or Ukraine, where the surrogate mothers are recruited solely because of their reproductive ability — and that’s usually because they don’t have money — surrogacy is offered as a really great way to support your family, but you’re in the middle of one “We’re in a war zone, or healthcare is limited and there are no guarantees for the baby or the mother,” Jefford said.

“If you go to the US, on the other hand, it’s about money – and it’s actually a lot more money – but we know the surrogates are mentally and physically screened and everyone gets independent legal advice. And while money may be part of the motivation, it’s not the only motivation. [surrogates] are engaged, informed and empowered to make decisions.”

Jefford said the laws, as they stand, encouraged “black market” alternatives.

“People who go into mines or drive cranes or work on oil rigs all take risks with their bodies, but they get paid and it’s regulated. The IVF clinics, the doctors, the lawyers, everyone else makes a lot of money except for the person who is putting their body and health at risk,” she said.

Ezra Kneebone, a PhD student at Monash University who researches the needs of surrogates and intended parents in Australia, said some surrogacy laws were based on outdated assumptions about how a surrogate should act and feel, rather than lived experience.

“That’s because surrogacy is a controversial topic for some, challenging traditional views of family and motherhood,” she said.

Kneebone said surrogates are not eligible for Medicare rebates for IVF services and are often paid for out of pocket.

“The IVF doctors, lawyers and consultants will be compensated for their role in the agreement. I think it’s only fair that surrogates should be compensated for the time, effort, risk and pain involved in carrying a pregnancy and giving birth,” she said.

Kneebone was one of 14 researchers in the fields of law, bioethics, public health, anthropology and medicine who wrote to last year’s Senate inquiry into universal access to reproductive health care asking that surrogate mothers be given access to Medicare.

The scientists were consulted and the inquiry recommended the change, but it has not yet been implemented.

Both McCloy and Peach are aware they still have a long way to go to bring about the change they believe is needed, but say they are committed to the fight.

“Why shouldn’t we do it on our own soil, where women and men are safe, and put in place the appropriate laws to protect everyone’s rights?” Peach said.

“We have one of the best healthcare systems in the world, we are supposed to be a progressive country. It is time we took care of those who desperately want to be parents and through no fault of their own are unable to do so.”

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