Allowable surrogacy expenses on our colour chart
G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers, and I’m talking about colour. You may say, well, you’re a family lawyer, or you’re a fertility lawyer, or both, dull as dishwater, you never want to talk about colour.
Lawyers talk about black and white or shades of grey, they don’t talk about colour. But I’m actually talking about colour, I’m talking about a colour chart. I have prepared a colour chart about surrogacy expenses, and of course, these are my views about legislation.
But what I’ve done is to look at in every state and territory, so going around the country from the top, clockwise, Queensland, New South Wales, ACT, and the ACT bill that is currently before the Legislative Assembly, which is going to change expenses, Victoria, Tasmania, South Australia, Western Australia, and the Northern Territory, and said, What’s allowed?
What expenses can be paid for? And these are the common ones, and there are also some uncommon ones. What I’ve done, and I’ve done it as a colour chart, so it’s red, yellow, and green. Red, obviously, don’t do, yellow, might be unlikely or difficult, and green should be okay.
And obviously, with any expenses, you should get legal advice because you don’t want to turn up and discover by looking at the colour chart that, Oh, we’ve actually committed an offence or a series of offences.
But this is to give a general guide to make it easier to do surrogacy, because I often get asked, what can surrogates actually be reimbursed for? What is allowable? And of course, the general thing that said is everything that’s reasonable, but that doesn’t give you any guide.
So what we’ve done is to set out from the beginning. Step one, which is, is the surrogate suitable? Is this woman suitable to be a surrogate? In other words, she’s got to trundle off to a GP and then to a specialist to see whether she’s actually going to be okay to be a surrogate.
Step two, assuming that step one was yay, then go to, well, we now look at entering into the surrogacy arrangement. Namely, going off to see the lawyer, going off to see the counsellor, making sure that everything is okay, getting me the big tick, sign up for the surrogacy arrangement.
Step three is trying to become pregnant. Step four is becoming pregnant. Step five is giving birth and step six is after the birth with the transfer of parentage. Because, of course, everywhere in Australia, the only way that you can transfer parentage is a post-birth parentage order.
And they’ve got different names in different states, but in most places, they’re called parentage orders. So in each and every one of those, we’ve set out every common expense, or sometimes uncommon expenses, is it allowed or is it not? It’s quite shocking.
You see, some places are difficult, Western Australia in particular, some places are more flexible. The ACT, for example, at the moment, although that’s going to change for the worst, in my view. This is recorded, I should say, in December 2023, so it may be the bill and the ACT improves in form from where it is at the moment, and some fall in between.
But I’ll give you some of the expenses. You might think, Okay, well, the surrogate’s got to have parking. Well, sometimes it’s allowed and sometimes it’s not. She might have maternity clothes. Well, guess what? Not allowed in Western Australia, not allowed in the ACT under the proposed bill.
Well, she might need… want to have massages or acupuncture, most places allowed, but not everywhere and guess what? Not allowed in Western Australia and not allowed under the ACT Bill in this current form. She might want to have a locum because she’s self-employed and she doesn’t want to make profit, but she doesn’t want to be out of pocket to be a surrogate.
Well, not allowed everywhere, they’re allowed, certainly in some places. I’ve had cases where, and just so we’re clear, I’ve had cases where the surrogate wanted massages, and she wanted acupuncture, and she wanted a locum.
And fair enough, she didn’t want to lose her business because she wanted to give the gift of life and risk her own death or personal injury to enable someone else to become parents. Some expenses that are a little bit more unusual that may not have been thought of are these: the surrogate and her husband.
Typically, the surrogate isn’t single and will be married. But when I say husband, it might be her male partner or a female partner or a wife or non-binary partner or spouse.
But typically it’s a female surrogate and a male husband should do wills because they want to make sure if they’ve got children already, that their children are not prejudiced if she happens to die, that that child is going to be born who will be her child at birth, then claims on her estate or her husband’s estate, we don’t want that to happen.
The other one that’s, again, may not have been thought about is to enable her to get divorced. You may say, what has the surrogate’s divorce got to do anything with a surrogacy journey? It’s this. If she is married, then her spouse must be, if you look at the surrogacy laws in most states, a party to the surrogacy arrangement.
Must consent, must have counselling, must have legal advice, and must consent to the order being made by the court and when is that person a spouse? Right at the beginning. So sometimes we’ve got to pause and say, Hold the horses. We don’t want to start this journey quite yet, thank you very much.
We want to make sure she’s divorced and so we’re not talking about parenting matters or property settlement or any of that, but just, Well, they’ve been separated for a year. We want the marriage to end because that’s the reality, to enable her to get divorced in those circumstances.
Because if she doesn’t do it, you end up with a mess at the other end, and I once inherited a matter where the child had already been born and I was asked, Please fix this mess, I don’t like fixing messes. I like getting them right at the beginning.
So in an appropriate case, it is much better to have the surrogate divorced than to have her estranged spouse a party to the surrogacy arrangement. I have one where they’d split up and he was okay about it, but I feel uncomfortable about it unless it’s absolutely crystal clear that the former spouse is supportive of the arrangement.
So they’re the kinds of expenses that are met in some states and not in others, and it’s all in the colour chart. Go and have a look. Thank you.