Ellen Embury’s Journey into Fertility Law

Ellen Embury’s Journey into Fertility Law


In this latest edition of the Australian Family & Fertility Law Podcast, Stephen Page talks with Ellen Embury, Western Canada’s leading surrogacy and fertility law practitioner, about what prompted her to practice fertility law.


Intro: You’re listening to the Australian Family and Fertility Law podcast. Here’s your host, Stephen Page.

Stephen Page: G’day, it’s Stephen Page from Page Provan Family and Fertility Lawyers. And I’m talking today on my Australian Family and Fertility Law Podcast. And today’s guest is Ellen Embury, who is a wonderful colleague from Carbert Waite in Calgary in Alberta, Canada. I’ve known Ellen for more years than I can probably count. She specialises in the same area that I do, which is fertility law. And she’s also a fellow of the Academy of Adoption & Assisted Reproduction Attorneys. And in the meantime, she’s been very patient, waiting while I keep talking. Good day, Ellen. How are you?

Ellen Embury: Well, hello, Stephen. It’s always a matter of patience with you, isn’t it? [both laugh]

SP: The purpose of today, of course, is to ask you, you ended up doing fertility law. And I know that that’s not the whole of your career by any means. So I was just wondering how you got into fertility law and what do you love about doing this area?

EE: I love the questions. So as of this year, I’ve been practising law for 22 years, which is a bit of an ouch factor. And when I started out, I’ve jumped around a bit. I started out doing medical malpractice, acting for doctors. Then I did medical malpractice acting for plaintiffs. And about three or four years into my practice, I met my husband. I was practising in Toronto, Canada. He was living in the mountains in Western Canada. And he announced that he would never live in Toronto. So I packed my bags and moved to Calgary and called a friend from law school and said, where should I work? And I found myself. And this was within eight weeks of meeting my husband.

SP: Oh, wow.

EE:  Oh, yeah. It was very fast. I was almost 30. So.

SP: You’re in love. Toronto to Calgary is not a short distance by any stretch.

EE: It’s not, it’s a five-hour flight, and I had never been there. So I landed at a law firm where I was doing I stayed in the medical field. I was acting for healthcare professionals in liability matters. I was doing employment law. And a woman in my law firm was struggling with infertility. She was a partner at the law firm, and she did what so many women do, which I find really interesting. She went through fertility treatment. She ended up having a surrogate. And then when her surrogate was three or four months pregnant, she herself fell pregnant. And we’ve seen that.

SP: I’ve seen that happen. I have to say, it’s not that common here, but I have seen that happen. You just go, wow.

EE: Yeah. And I think the stress sort of leaves you. I’ve just spent the last five, six, seven years trying to do this, and I’m now de-stressed. And suddenly she’s able to be pregnant herself. And so I started assisting her, doing a little bit of assisted reproduction work. And eventually, she left the practice of law to become a life coach. And I essentially inherited the practice and what I loved about it at the time was I spent a lot of time sort of insurance defence, personal injury, really difficult, sad cases. And then I have this tiny, little happy practice. And what I love about the tiny, little happy practise is that it’s grown into quite a large happy practice.

SP: You’re right, aren’t you? It is such a happy practice. Now, think about all the other areas of law. It’s quite different in that you have happy people that they’re very stressed on the way through, understandably when they can’t have kids. And we know that surrogacy journeys, for example, are not always smooth. Mine certainly wasn’t, but at the end of the day, they end up with child life is just blissful grand.

EE: Yes, well, and I look at you and Mitch and Elizabeth, I mean, absolutely, that’s exactly the way that it is. And to be in the room with you guys is the same way as it is to be in the room with many of my clients are from Australia, and now I’ve got clients around the world and it’s really wonderful. The extra happy element is that my own children are 15 and 17, and my daughter, who speaks fluent French, has all these clients who, when they come to Calgary and they have their babies, I mean, they always come to the house and we have a dinner and they meet Madeleine and she’s got a nanny job anytime she wants. So it’s great. So it’s a happy practice. And I still maintain my employment law practice. I still have a litigation practice because it’s always nice to have the chops to be able to stand up in front of a judge and convince something of somebody, convince someone of something. But it is such a nice sideline, not a sideline. It’s 70% of my practice and it got so big that I had to bring in a law partner and a team to manage it.

So that’s where it all started.

SP: Well, I think that’s wonderful. And one of the things you’re saying, having practice, it made me reflect. I’ve seen judges here cry tears of joy because of the joy of making a parentage order and hearing judges say, I stole this file from Judge So and So judge Bloggs, for example, because this is the best part of my job, because most of what judges do is misery.

EE: Misery. Misery! So I feel the same way. And I’m so lucky because I have a very interested judiciary who are mostly women who, 10, 12 years ago, I went to meet with our chief family judge and I said, I need to do this. I need to do this in a way that if a baby is born, I don’t have clients sitting here in a foreign country for five, six weeks while we sort out their parentage process. We need to do this quickly. We need to be able to do it fast.

SP: You’re like Quick Draw McGraw? I don’t think you’re a horse.

EE: Not today.

SP: Quick Draw McGraw was a Sheriff, wasn’t he? Back in…I’m showing my age now, but was so fast off the draw. You’re not going to be getting these orders in about two or three days. Today here is Friday. So you’d get an order at worst, Monday morning or by Wednesday, Monday morning even better.

EE: Monday morning. And our team and I’m so lucky. I’ve got this amazing team who, you know, all of our babies, I always joke all of our babies are born on Friday and Saturday nights, and so all of them, everyone. So Sunday morning, we were raring to go. We’re doing the documents, and thank goodness, actually, COVID has been wonderful for us because we’re able to do everything remotely now. We’re able to do everything via Sign now, DocuSign, that’s now legit in our court system, and so we can get everything signed up. But that’s so important, Stephen, because parents are always stressed, oh, my God, there are lawyers, there’s courts. I just want to take my baby home. And I say, okay, my team will be there on Sunday morning so that I can get your order on Monday morning, maybe Tuesday. I get it up to vital statistics by Wednesday. And Bob’s your uncle, you’ve got your birth certificate within six or seven days. Okay, so I’m going to brag. I created that, and I think it’s the slickest in the country.

SP: Well, it’s much, much slower here. Unfortunately, much slower. It seems that parentage orders, there seems to be no priority for parentage orders here. I’ll just give you two examples, because we do it in various States, but in Queensland, we’ve got to get a post-birth assessment. We got to wait for that, a psych assessment by a social worker or psychologist to show it’s the best interest of the child to go with the intended parents. And once you put all the paperwork together, there’s a requirement for about 16 affidavits, I think. Well, they’re about a dozen affidavits. It’s an enormous number you got to get from each of the parties and the lawyers and the doctor and the pre-signing counsellor and the assessing counsellor. I think it comes out to about a dozen thereabouts. You put that all together, and that takes a while to put together. If you manage to do it under two months, you’re doing really well. And then when you lodge, you wait a month to get the orders. But the orders are made on that dying court, and we’re able to get the birth certificate change within a week. New South Wales, you’ve got to do it in the same challenges in New South Wales, except another layer of post-birth counselling.

SP: And then it takes by the time you lodge, it used to take three weeks for the orders to be made, but the most recent one I had took five months, five months to make it. And then it’s got to go after birthday, marriages and say, well, if they take pre-code, they take six weeks to process. I don’t know why it’s so slow. And this seems to be, well, everyone accepts that that’s the system and that’s good enough. But I look at what you do, the way that you educated your judges and said, look, we should be speeding through this. We can’t, as a matter of law, generally, bring an application until the child’s at least 28 days or 30 days after they’re born. So we’ve delayed from starting quickly and then delays built all the way through.

EE: I feel like you’ve just explained to me why I have so many Australian clients coming to Canada.

SP: No, that’s not the reason. I’ll tell you the reason for that. The reason is because we don’t have enough surrogates. We don’t have enough surrogates. And I’ve looked at the statistics on the way as an ebook about this. So that’s been written to being edited as we speak. But when you look at the statistics for every child born in Australia through surrogacy, three are born overseas.

EE: So I am curious about this because I lived in Australia in 1988 as a teenager in Adelaide and travelled all around. My mom was at Flinders University. Everybody in Australia is wonderful. Why is it that you don’t have enough surrogates in Australia? Tell me.

SP: Well, I’ll just go back to the statistics for a second, because the statistics, I think, tell a story. There are more Australian children born via surrogacy in the United States than there are via surrogacy in Australia.

EE: Australia.

SP: Because when you look at it, for every dollar you spend in Australia on surrogacy on a domestic journey, you might spend somewhere between three or four or maybe five in the United States to get the same outcome, namely the parents of a child who’s living with you and has your citizenship. Canada has always been in the top five. In recent years, it’s been either number three or number four, after Ukraine and Georgia, the Republic of Georgia.

EE: How many calls have you had about Ukraine this week?

SP: K had a few. 

EE: I had a bunch.

SP: I had a few, generally in a panic, and now they’re looking at going elsewhere. So it’s going to put pressure on everywhere else. But I think the first reason is because we’ve made such a song and dance about criminalising people for engaging in surrogacy. And we’ve said there’s been a lot of publicity about it, that we can’t pay surrogates for anything whether they do it and they pay for expenses. But even the expenses issue is problematic and vary state by state. We don’t have any consistent national laws on it, which makes it so much harder.

EE: I would differentiate Canada there because, of course, if you speak to the American surrogacy community, they’ll say, well, surrogacy is illegal in Canada. That’s absolutely incorrectly, legally incorrect. Surrogacy for profit is illegal in Canada. As long as you’ve got receipts and reimbursable expenses, you’re good to go. And we have consistent we have a federal law that governs reimbursable expenses. And so it’s very obvious what is or isn’t reimbursable. And they’ve essentially adopted the test that those of us who practise in the industry for years had, which is but for but for the pregnancy or but for the surrogacy, would I have incurred this expense? And I’m not going to pretend I always say altruism does not mean austerity. The surrogate is not expected to have the cheapest of everything or necessarily to save the entire cash money. No, absolutely not. But your range of sort of $25,000 to $35,000 Canadian for surrogate reimbursable expenses, I think is a realistic one. And you compare that I think in the US I’m seeing some agencies, you just pay a cheque for $50,000 US. And the Canadian dollar is usually virtually on par with the Aussie dollar. And of course, when I’m talking to Americans, I say, well, for you guys, it’s monopoly money.

EE: The Canadian dollar has about a 30% window vis-a-vis the American dollar.

SP: I think the most recent figure I saw for a fee for a target in the US was 58 to 68.

EE: Yeah. And that’s US dollars. So in Canadian dollars or Australian dollars, that’s in the 90s. Right.

SP: But to go back to your question, why don’t we have it? I think I’ll give you one place. Well, I’ll give you two places that don’t have the biggest populations but illustrate the problem. Northern Territory still has no laws about surrogacy at all.

EE: Really?

SP: You might think, oh, that makes it really easy. We can do it. Well, they only have one IVF clinic. The IVF clinic takes a view properly. I think that because there’s no laws about surrogacy, there’s no ability to transfer parentage or recognise into the parents as the parents. We won’t touch it. So if you’re in the Northern Territory, what are you going to do? You’re either going to go move heaven and Earth to move into state. Are you going abroad or you’re going to go overseas? Well, you’re going to go overseas. That’s what most people will do. And that’s what certain most of my Territorian clients have done. And the other one is Western Australian. Western Australia is really the standout example. In Western Australia like Victoria, before you can start, you must get approval from the state regulator.

EE: So you actually have to be approved. So the state regulator essentially says, really?

SP: Yeah. And West Australia is even worse than that. There must be a three-month waiting period before when you’ve got all your paperwork together. So you had your assessment, psychologist assessment and had your legal advice, you signed up, but you must have a three-month cooling-off period before you can actually ask them. So if they’re delayed in their process, they might be six months out the door. But it’s worse than that. It’s hard to believe it can be worse than that. But it is. Well, on top of that, to get that approval. One of the clinics in Western Australia I’m told and I’m sure this is accurate, charges a $10,000 fee so that all the paperwork can be attended.

EE: So you have to pay us ten grand for us to decide whether you’re entitled to do this.

SP: To get all the paperwork to decide whether you’re fit. But there’s worse on top of that, the donor. So if you’re any gamut donor, sperm donor, egg donor, embryo donor, must be known. No bother trying to go through a clinic and find someone. You’ve actually got to know the person because they have to be a party to the surrogacy agreement. The only place in the world that has that and therefore must be part of the counselling and therefore must be part of the legal advice. So your costs are ramping up from all this process and delay, let alone finding someone. And that’s not all gay couples and single men are excluded. So just think this through for a second. If you’re a straight couple, fine. If you’re a single woman, fine. Even if you’re a lesbian couple, you’re fine. But if you’re half the market, which are gay couples, you can’t do it. And so do we see statistics, one child a year gets born in West Australia via surrogacy every year on average. So we’ve got a population about 2.5 million. They’ve got one child a year. And given they’ve got about 10% of the Australian population, how many are born overseas?

Between 25 to 27, maybe as low as 22. I think that illustrates the point.

EE: It does. And when I hear stories like that, so every time I speak, I use the exact same phrase. I am so proud that Canada is a country that it is completely safe for gay men to come and have a child. I am delighted by that. It is safe. Your child is going to have first-class health care. You’re going to have to pay for your child’s health care because the Canadian taxpayer is not necessarily going to pay for it, but there’s insurance products to deal with that. But we are a safe country for gay men to come and have children. And I think there’s two in the world. I’m hearing a little bit about some ethical programmes in Mexico now. I’ve had screaming heebie-jeebies about Ukraine and Georgia for a very long time. And certainly what’s happening right now in Ukraine has nothing to do with that. But it is a place where it’s ethics around ensuring that the women who choose to be surrogates are treated well. They have access to counselling, they have access to nutritional needs, they have a community that they can really support each other and that they are treasured for what they’re doing.

EE: That is the model in Canada, and that, I think, is a super exciting model. It’s not without hiccups. Of course.

SP: I like that. Now, it sounds obvious. And Ukraine, what I’ve seen from the Ukraine, I’ve generally not recommended Ukraine, but Ukraine, it’s very between pretty good places to Waefall and who knows which one you’re going to get because they’ll give you the baby guarantee. And you have to wonder about whether the surrogate has independent legal advice or has any support or has any counselling. Once you describe it, why is that a good thing to have all those things in place?

EE: Because surrogates are not commodities. They are women who are doing the ultimate thing in terms of helping somebody have a family. They are not employees, they are not commodities, they are gifts and they need to be treated that way and they need to be treasured and they need to be looked after. And in our model in Canada, and it’s not for everybody, because the expectation is that you will have a relationship with your surrogate. There’s no legal entitlement to contact after the birth or anything like that. But the reality is that if I do ten surrogacies, four will come back to me within two years to say, we’re having baby number two now and it’s the same couple in the same surrogate. And it’s that bond that continues. And I think it’s really, again, we get back to that theme of happy law. It is good. Now, hey, I always joke that of the 100% of my time, 80% of the time, it goes really smoothly. 20% of the time it goes quite, there are some difficulties and I spend 80% of my time in that 20.

SP: Yeah, the usual ID, 20 row.

EE: Yeah. But that’s reality, that’s life. That’s what happens when women are choosing to assist people this way. But I hear stories like this and, of course, Ukraine, I was always baffled by it. It was heterosexual only. They were only accepting usually to be married and heterosexual. For the gay community, Canada and the US, as I say, I am seeing some programmes in other countries that look promising right now, but they’re in countries that have some natural instability. And so we always have to think about that and think about that.

SP: One of the things that has always struck me about Canada and the US and Australia’s in the same boat is that there are strong legal systems. We have ultimately judicial oversight by an independent judiciary who are bribed. So they will be keen to protect everybody.

EE: Well, they are, yeah.

SP: Protect the surrogate and apart and protect the intended parents as much as I can.

EE: Absolutely. And we as lawyers have a duty to do that. And we’ve got the added advantage that over the past year in particular, it’s just faster and faster. And so we now have laws. I have Australian clients to say, where is Saskatchewan? Where is Manitoba? And I get to say things like.

SP: I know where they are.

EE: We’ve got these great new laws in those jurisdictions because lawyers have been talking about we need to make the availability of easy access to the courts, ethical approach has to be national. And we’ve had some exciting legal changes in the past year or two, which is great.

SP: That’s wonderful. I think the idea of having those protections in place, I explain it to clients in this way. You’ve got to treasure her because of all the things this is not just a transaction. This is very much a human experience. And it’s interesting seeing what most Australian Internet parents want to do, at least those who go into Canada in the US, they want to have an ongoing relationship with the surrogate. Those who’ve gone to places like Ukraine and Georgia, one would think generally they don’t, because typically they’re not from Ukraine and Georgia don’t speak the language and therefore can’t communicate.

EE: Yeah. And may or may not have that level of contact, you know, who knows what. Yeah. Precisely. If you can’t communicate, that would be incredibly difficult.

SP: But I think this idea of having this ongoing relationship because this woman is putting her life on the line for you. She’s got a small but significant chance of death. And no one wants to talk about death the day with death, but this is the reality. She could die. And I was explaining to you, Ellen, just before we started about how it had a case recently where the mother died after giving birth. It wasn’t a surrogacy case, but it just reinforced women can die through childbirth. And I certainly say to my clients, look, you’ve got to be aware of this risk. This woman is an angel doing this stuff for you, and she’s got to be protected and cherished.

EE: Yeah, for sure.

SP: I think this idea of having an ongoing relationship, I think is wonderful. And I love seeing in Canada about how surrogates are able to reach out to other surrogates and have that support, have that sense of community. So particularly women who are living in remote places or single that they’ve got that partner, they’re relying on others who’ve been through the same kind of experience, the sense of bonding.

EE: I always tell people it’s almost like an algae bloom on a lake up in Northern algae blaming algae. Algae. You’re right. Absolutely. It’s algae up in these Northern communities. There’s a surrogate up in Fort McMurray, which is way the hell up in Northern Alberta, and then suddenly we’ve got ten because they’ve all been chatting with each other and they all think this is such a cool thing to do, and they get to hang out together and they get to support each other and they get to have these little sort of dues where they celebrate each other. And I think it’s really great. And we see that in some of these smaller communities, for sure. And it sort of takes me back to whenever I hear about a surrogate in a small town. So I did one today. There’s a little town called Horse Fly, British Columbia. That’s going to be the next spot. That’s the real name. That’s the real name Horsefly. And I looked at that name and I thought, okay, I’m going to see three surrogates at a Horse Fly this year, I guarantee you.

SP: Yeah. That’s like Australian locations, like Mount Buggery.

EE: Oh.

SP: I know. I really liked it. So we’re going to call it that. Stuck. [both laugh]

EE: Well, that’s really good. Yeah.

SP: Ellen, some last thoughts. If someone is thinking about surrogacy, what do you say? What are the joys for you about helping people through the surrogacy journey?

EE: I make friends with my clients. They come back to me, they send photos. I’ve got a beautiful, I’m at my home office right now, but at my work office, we have a baby wall, and we’ve got this amazing wall of all of the babies that have been born in our practice. I have been doing this for almost 15 years. We average about 80 to 100 babies a year. We’ve got a lot of babies. And it is such an exciting thing to see that. I always tell people, it’s not all sunshine and roses. There’s going to be really difficult times. The most important thing is that you are working with a team, whether it’s your lawyer, your clinic, your agency, that you feel truly supported, you feel truly looked after. When I chat with clients from Australia, I say, look, I get it. First of all, you’re on the other side of the world. And because of the way the time zone works, it’s probably 06:00 in the morning to my 04:00 in the afternoon. And they’re sort of blurry-eyed. And I say, you’re thinking about doing this really personal legal process on the other side of the world.

I want to make sure you feel supported. I want to make sure you feel you have an ally. And I want you to know that if something goes wrong, I’m the first person you call. And when they do call and sometimes they call at very awful hours of the night, you sort of jump into action and you help and it makes you feel good about your job.

SP: Wow. You made me reflect. Because when my beautiful clients send me pictures of the babies having been born, I weep tears of joy. It gives me such joy. And I say to my clients, who would ever in a million years ever want to talk to a lawyer about having a baby unless your partner is a lawyer. No one in God’s Earth would ever want to do that unless they had to. And I just consider it. And I hear it loud and clear from you that it’s just such an honour and a privilege to help people have kids. I pinch myself and I get the same feeling from you. I pinch myself every day that I have the best job in the world.

EE: Yeah. I’ll pinch you. [both laugh]

SP: And on that note I’ll thank you for that. And I just want to thank Ellen Embury from Carbert Waite in beautiful Calgary, Alberta in Canada for joining me today, Stephen page on the Australian Family and Fertility Law podcast. Thank you.

Outro: Thanks for listening. If you have any questions, please don’t hesitate reaching out to Stephen at pageprovan.com.au.

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