The Cost of Surrogacy in Australia

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page approximates the cost of Surrogacy in Australia.

Transcript

G’day. I’m. Stephen Page from Page Provan Family and Fertility Lawyers. I’m a dad through surrogacy. Since 1998, I have advised in over 1750 surrogacy journeys for clients in every part of Australia and at last count, 32 countries overseas.

Today I’m talking about the cost of surrogacy in Australia, not the cost of going overseas, but just doing it here at home.

I presented at a surrogacy conference last year, 2021, and I was a little annoyed when I heard an intended father say, “Well, the cost of surrogacy in Australia, and this was in Brisbane was somewhere between 50,000 and $100,000.” And I was annoyed because I thought, well, that was a little high. It varies state by state. So one of the things that you’ll see when you listen to my videos is that sadly, we don’t have consistent laws around the country concerning surrogacy. We also don’t have consistent laws around the country concerning the regulation of IVF clinics.

Every state and territory is different. And what that means in a practical sense is that you have different layers of red tape to go through. That means that the legal costs of going through your surrogacy journey can vary. And there are a number of reasons why that varies. But just be aware it varies state by state.

So what I’m going to talk about first is the cost in these places Queensland, New South Wales, South Australia, Tasmania and the ACT, because they’re roughly the same. The process is slightly different. And I’ll just talk about how it’s different. But if you put a number in those places, then the number you should be budgeting for is about $70,000. You might be lucky and be able to do your whole journey for as cheap as $40,000.

Or you might be unlucky and it might be up the top end about $80,000. I think $100,000 is a bit much. And you immediately say, well, what’s that cost? Well, that cost is everything that’s the IVF that’s the counsellors, that’s the lawyers, as they used to be said in an ad in Brisbane years ago, what have we got? The lot. That’s what. This is the cost of the lot. 

I’ve had the experience as a dad going through surrogacy of that delightful moment when you’ve just had the transfer and we had three of them. And you go at the front of the clinic and the lovely woman sitting at the counter says, “That will be $3,000, Mr Page.” And in a nanosecond, you may think, oh, my God, do I have that money on my card?

Am I above the limit? Have I got that? Oh, that will take forever to pay. And then you realize, of course, you’ve got that money. And then you think, what’s my PIN number?

We’re all doing pay wave. Don’t ever remember the PIN number. And this happens in a nanosecond. As I said, you’re asked the question and you immediately respond, oh, sure, but you had that rush go through your head at that moment. I’ve had that experience.

So I hear clinics talk about, “Well, this is how much it might cost here.” I hear advocates talk about, well, here is the cost of this. And that what I focus on is the overall budget, because however it’s happening, it’s coming out of your pocket. And so that’s why I say 40-70,000, maybe $80,000. And the reason for the variation is not so much legal. The legal costs in most cases are fairly straightforward.

It’s not uncommon to spend somewhere between ten and $20,000 in legal costs, and that’s the counselling and the lawyers. And the reason for that variation is it depends on where you go. Some lawyers, for example, in Sydney, charge more. Some in other places charge less. Costs of counsellors might vary.

How many counsellors you have to see might vary. Typically, if you go to South Australia and Tasmania, you will see one counsellor. If you go to Sydney, if you’re in New South Wales, you’ll have three. But according to one clinic, you’ll have four. And that’s because, at the beginning of the process in New South Wales, you must have a counsellor before you sign your surrogacy arrangement. You must have a counsellor after your child has been born. This is called an independent assessment report. It’s to tell the Supreme Court of New South Wales that everything is great for your baby, and then there must be relinquishment counselling for the surrogate and her partner. That’s potentially three counsellors. In New South Wales, typically we make it, too, but at least one of the clinics insists on there being another separate internal counsellor. So you can have three or four. 

In Queensland, the practice is typically two to comply with our Surrogacy Act, namely one before and one after the one after writing a surrogacy guidance report. Those reports are normally not required in anywhere other than Queensland or New South Wales. In the ACT typically you’ll have one counsellor beforehand. So why is there a discrepancy about cost?

Well, it really comes down to how you fund IVF and how many rounds of IVF you do. It is possible to have a Medicare rebate for IVF if you have infertility, and that’s a topic for another video. It is possible to have Medicare rebate for IVF through surrogacy. If you have infertility, however, you must have infertility first so that’s the topic for another video. And federal government regulations make it quite plain that if surrogacy is being engaged in, then there can’t be any Medicare rebate.

The result is that different clinics take different views about whether Medicare rebate can be claimed, and this can have a marked difference in the cost for you. The other difference is how many rounds of IVF you have to do. If you only have to do one, hooray! The cost is considerably cheaper. If you don’t have a subsidy from the taxpayer in the form of Medicare, then you’ll be out of pocket, say $17,000 a cycle. Do three of those and your cost suddenly blows out.

If you only have to do one, you save a lot of money. Victoria and Western Australia are special cases. The cost in Victoria is higher, and Western Australia is even higher. Again, Northern Territory. We don’t need to discuss about surrogacy yet because surrogacy, in effect, cannot occur there through their IVF clinic because there are no laws in the Northern Territory concerning surrogacy, and as a result, the only IVF clinic there won’t touch it.

Fair enough too, I think. So why is Victoria higher than New South Wales, for example? Well, because even though you don’t have a postbirth process of a report being obtained, you have a pre-birth process of having to get approval from someone else. So not only do you pay for the counsellor and the lawyer and the doctor and the lawyer for the other side but lo and behold, you also have to get regulatory approval.

And this is from a state regulator called the Patient Review Panel. Applications to the Patient Review Panel are typically made by IVF clinics. I make sure that all my paperwork is done. I’ve never had to go to the Patient Review Panel to get approval. My matters have gone through smoothly every time. That cuts down cost.

The Patient Review Panel, however, has insisted in the past that there is a minimum of two counsellors, namely a counsellor through the clinic and secondly, an independent counsellor with reports from both. The Patient Review Panel also requires long written, detailed advice or outlines of advice, because “They say, we’re not actually after the advice from each of the lawyers.” So suddenly lawyers are having to write long letters which they charge you for so that you can get Patient Review Panel approval. In addition, the Patient Review Panel in some cases has been very difficult. And we know this aside from reports I’ve had direct from parents who have gone through this process because when the review was undertaken in 2018 of assisted reproductive treatment and surrogacy in Victoria, with specific requirements not to touch the Patient Review Panel, they got overwhelmed with feedback from parents and advocates talking about horrible experiences through the Patient Review Panel.

As I said, I’ve never seen it, but I’ve heard of it. And one of the cases I’ve heard of was where the Patient Review Panel was insistent that there be a hearing. So a formal hearing, there was cross examination by a barrister of the intended parents and of the surrogate. The intended parents got their own solicitor and barrister to appear. They burned up money.

So if you’re talking about Victoria, I would add probably another $5,000 in Victoria as opposed to the Eastern States. So I would have a budget of $80,000 for that just to be sure. WA is slightly more expensive than Victoria. The only people who can access surrogacy in WA at the moment are heterosexual couples, single women and lesbian couples. If you’re a single guy or a gay couple, forget it.

You either look somewhere else in a state or overseas. And overseas there are issues about committing offences and the same indeed in going into state. So you’ve got to take extreme care. You can’t get advice if you’re looking at interstate or overseas from a local lawyer in case it is a surrogacy arrangement for award, they’re committing an offence. But you can get advice from a lawyer like me about surrogacy in WA so you’re not committing an offence in WA. 

But provided you can do it in WA, the cost is more expensive for two reasons. First, WA is the only place in the world that requires any donor of genetic material such as sperm donor or egg donor, to be a party to the agreement. So nowhere else in the world requires that, only WA. And if they’re going to be a party to the agreement, you know what’s coming next.

They’ve got to take part in the counselling of some kind and they’ve got to have their own lawyers. So first thing you’re dealing with is at the beginning of the process. You’re not just funding two lawyers, namely a lawyer for the intended parents and the lawyer for the surrogates, but you’re also paying for the lawyer for the donor. So there’s an extra lawyer thrown in. Extra counselling has to be paid for, although it’s typically in WA, one counsellor at the beginning.

But the second requirement is that you have to get approval from the state regulator, the Reproductive Technology Council of WA.

This has a cooling-off period under the legislation, so you’ve got to put your application in and there is a minimum three-month cooling-off period. I’ve been told by parents who tried to go through this process, it can be up to six months. So you’ve got that opportunity loss, but that’s not a direct cost. The direct cost is that you must make sure that the application is compliant. I’ve received a reliable report that one of the IVF clinics in WA charges $10,000 to put together the application for the approval.

So that’s not the legal advice, but that’s the clinic saying it’s compliant and also the counselling being obtained $10,000. So in WA, I’d say it’s slightly more expensive than anywhere else. I’d budget $85 to $90,000. 

So if you’re on the most of the East Coast and you’re doing surrogacy ballpark figure 70,000. 

If you’re in Victoria, ballpark figure 80,000.

And if you’re in WA, ballpark figure 90,000. 

Thank you.