7 vital questions that need to be asked in any surrogacy journey
The key to her presentation was setting out 7 points. I will set them out below with my commentary.
1. Have I asked the right questions to the right people?
What is implicit in this question is the second part- to be able to identify, first, that you are speaking with the right people, and that you are then asking them the right questions.
The simple fact of the matter is that there are sharks in the water when it comes to surrogacy- those who have dubious ethics, and give inaccurate advice, and whose aim is to make as much money as possible. It can be very hard for intended parents to distinguish who is genuine and who is not, and who is ethical and who is not.
One might think that the internet helps, but often it hinders. The internet allows anyone to post information, and set themselves up as experts in the field. If you are not careful, you could be spending far too much money, and at worst commit a criminal offence and do not end up becoming a parent. The journey could involved unnecessary heartache and delay- which with careful planning could have been avoided.
In undertaking surrogacy, which is after all a legal process, as opposed to IVF, which is a medical process, there are a number of people who need to be spoken to:
- the IVF doctor. Is surrogacy necessary? For heterosexual couples, single women or lesbian couples, is egg donation viable? If egg donation is viable, there is no point going that step further and going through the most complicated process of all.
- the fertility counsellor. However the surrogacy journey might go, it is essential in my view to talk to someone who knows about the impact of the surrogacy journey on the intended parents and on the child. Too many intended parents focus on the process that results in the birth and transfer of parentage of the child, and not on the long term impact on them, on their child and on others, such as the surrogate. Getting to the birth and hand over of the child is not the end of the process, but merely the beginning.
- the local lawyer. Too often Australian intended parents consider that they have to undertake international surrogacy- when often they can do local surrogacy for a fraction of the cost, and do so without the legal complications that come from going overseas. Even if the decision is made to go overseas (which might mean that criminal offences are committed- which can occur in 5 of Australia’s 8 jurisdictions) – it is important to know about citizenship, and what rights the surrogate and the child has. Does the lawyer know what they are doing? Most lawyers, including most family lawyers, know little about surrogacy, let alone international surrogacy. Can the Australian lawyer suggest a lawyer overseas? How is parentage recognised by the law in Australia? Does the IVF doctor, the surrogacy agency or egg donor agency have a good reputation?
- the egg donor agency. If going overseas, then very often an egg donor agency needs to be used. There are legal issues in Australia , and issues for the child. Will the child ever be able to find out who donated her eggs to enable him (or her) to exist? If not, why not? Is the egg donor agency reputable, long lasting and ethical?
- the surrogacy agency. If going overseas, then with rare exception a surrogacy agency will be used. Their role varies from country to country. Again, what is their role, and how do they help? Is the surrogacy agency reputable, long lasting and ethical? Do not assume that the agency will be around forever. In most countries agencies are NOT regulated. It is very much a case of buyer beware.Obvious questions to ask are: does the surrogate obtain independent legal advice before signing up? Is she screened psychologically? What are the criteria for the agency’s screening of a surrogate? Does she have control over her own body? Will we get to meet her? Can we have an ongoing relationship with her, for the sake of the child? How will I know if I have met a good surrogate? How will the surrogacy agency manage the process? How much are the agency’s fees and what do they include? What is the agency’s view on the right of women and the rights of children?
- the lawyer in the foreign country. This person will often be first suggested by the agency. What type of work does this lawyer do? Does the lawyer overseas know the Australian lawyer? Can they work as a team? What is the process of undertaking surrogacy overseas? How does parentage become recognised overseas? Does the IVF doctor, the surrogacy agency or the egg donor have a good reputation?
- if there is multiple citizenship- getting advice before starting from lawyers experienced in each of those countries about the likely impact for you and the child about what you propose to do. it is not unusual for Australian children to have 3 or 5 citizenships. This should all be checked out at the beginning. I often work with other international lawyers so that this issue can be properly address- at the beginning. If citizenship of the child is recognised in Australia, and the child goes with you back to, say, Italy (you also hold Italian citizenship), what might happen?
- migration agent in Australia. Have you brought citizenship applications for children born through surrogacy before? What is your record? Why is using a migration agent advisable? Have you worked with the Australian lawyer/ overseas lawyer/ surrogacy agency before- and what is their reputation? How long does a citizenship application take? Should the application be made here or overseas?
2. Have I identified my true motivation for wanting to do this?
Be honest with yourself. Do you want to be parents? if you are simply wanting to be a parent to please someone else- for example to keep your marriage together, or to satisfy members of extended family- think again.
3. What are the laws regarding surrogacy?
As I said, and I am thankful to Ukrainian surrogacy lawyer Dana Magdassi for this statement- IVF is a medical process; surrogacy is a legal process. It is essential that you get advice from a lawyer in Australia who knows what they’re doing, and someone in the foreign country who knows what they’re doing- and preferably they know each other and have worked with each other before.
Do not make the mistake of getting advice from the foreign lawyer only. If you are spending tens of thousands of dollars, and all your emotional energy, and taking between 18 months and four years of your life to make a baby, you owe it to yourselves, and going to a minimum of two jurisdictions, and especially to your child to get legal advice at both ends.
4. Can I control the risk factors in this situation?
When undertaking an international surrogacy journey, risk abounds- legal, medical and relationship. What are those risks, and can you control them?
5. Can we do something just as good with less risk involved?
What a brilliant question! As I said, surrogacy might not be needed- it might be egg donation. If surrogacy is needed, it might be able to be done locally- and not internationally. If done internationally, is the country/agency/clinic chosen the right one- or there is somewhere else that is less risky?
6. What is the fallout if the risk becomes reality?
Sure the lawyers (and others) have warned me if it goes wrong, but what happens if it does? An example is a surrogate who lives overseas who might be coming to Australia to give birth. What if, for medical or other reasons she can’t? If she has to give birth over there, what does that mean? Will the child be trapped? Who will be recognised as parents?
7. Can you put it in writing?
When asking a lawyer- get their advice put in writing. The reason is obvious!