NSW Surrogacy FAIL: What Lawyers Got Wrong and How to Avoid It

Surrogacy journeys should be joyous and smooth pathways to parenthood, but unfortunately, legal missteps can turn them into complex, frustrating ordeals. In the realm of Australian family and fertility law, few cases highlight these pitfalls better than the recent Supreme Court of New South Wales decision in the surrogacy matter known as REN. As someone deeply entrenched in surrogacy law with decades of experience, I want to unpack what went wrong in this case, why it matters, and what intended parents and their lawyers need to know to avoid similar mistakes.

The REN Case: A Cautionary Tale of Legal and Procedural Blunders

The REN case involved a gay couple embarking on what appeared to be a straightforward surrogacy journey. They followed the required steps under the New South Wales Surrogacy Act: independent legal advice for both parties, counselling before entering into the surrogacy arrangement, and the successful conception and birth of a child. On the surface, everything seemed to be on track.

But as the case unfolded, it became clear that key legal requirements were either overlooked or mishandled, leading to a costly and avoidable impasse. The Supreme Court’s decision shines a spotlight on how small procedural errors can escalate into major legal complications.

Key Legal Requirements in NSW Surrogacy

To understand the issues in REN, it’s important to highlight two critical post-birth legal requirements under the NSW Surrogacy Act:

• Relinquishment counselling: This counselling supports the surrogate (and her partner, if applicable) in relinquishing the child. Its purpose is to ensure everyone involved understands and is emotionally prepared for the transfer of parental rights.
• Independent assessment: This is an evaluation conducted post-birth to inform the court about what is in the child’s best interests. It is a vital safeguard, ensuring the court’s decisions protect the welfare of the vulnerable infant at the centre of the surrogacy arrangement.

Both these steps require independent counselling and assessments to maintain transparency and fairness. However, what happened in REN deviated dangerously from these established protocols.

Where Things Went Wrong: The Counseling and Assessment Missteps

The crux of the problem in REN was the failure to maintain independence between the relinquishment counselling and the independent assessment. The Surrogacy Act allows the same counsellor to conduct both pre-signing counselling and post-birth relinquishment counselling, but crucially, the independent assessment must be genuinely independent.

In REN, the counsellor who performed the post-birth relinquishment counselling was different from the one who did the pre-signing counselling. That in itself wasn’t a problem. The real issue arose because the same counsellor who handled the relinquishment counselling also performed the independent assessment on the same day. This blurred the lines of independence and raised serious concerns about the validity of the independent assessment.

Justice Parker, presiding over the case, identified this problem early and even offered a clear solution: appoint a different counsellor to perform the independent assessment to preserve its independence. This solution was straightforward, sensible, and aligned with the legislative intent.

Ignoring Judicial Guidance and Wasting Money

One might expect that the parties involved would heed the judge’s advice and arrange for a truly independent assessment. Unfortunately, that did not happen. Instead, the intended parents’ lawyers chose to have the surrogate and her partner undergo the relinquishment counselling again, hoping this would suffice. They continued to rely on the original, compromised independent assessment report, which the court ultimately rejected.

By this point, over $4,000 had been spent on counselling fees that were deemed unusable by the court. When the matter returned before Justice Parker, he firmly rejected the argument that exceptional circumstances justified waiving the independence requirement. The court made it clear there were no exceptions to these legal safeguards, especially where the welfare of the child was at stake.

Lessons Learned: The Importance of Expertise in Surrogacy Law

The REN case underscores a fundamental truth: surrogacy law is a niche and complex area that demands specialized knowledge and experience. The court’s judgment noted that even the counsellors involved should have known better. But ultimately, the responsibility for the proper conduct of the matter rested with the lawyers representing the intended parents.

It’s critical to engage legal professionals who handle surrogacy cases regularly. Many family lawyers, despite their broader expertise, shy away from surrogacy matters because of their complexity and the specific legal nuances involved. Surrogacy is not just another family law issue; it requires detailed understanding of the legislation, judicial expectations, and the emotional dynamics at play.

One of the judge’s pointed remarks was a warning to lawyers: do not dabble in surrogacy law if you are not experienced. Insurers also caution lawyers against taking on surrogacy work without the requisite expertise. The consequences of inexperience are not just procedural delays—they can result in wasted money, emotional distress, and legal setbacks that impact the child and all parties involved.

My Experience and Commitment

Having advised on over 2,000 surrogacy journeys since 1988 across Australia and 39 other countries, I have seen firsthand how expert legal guidance can make or break the surrogacy process. My personal experience as a dad through surrogacy enriches my professional insight, allowing me to navigate both the legal and emotional complexities with empathy and precision.

For intended parents embarking on this journey, the key takeaway is clear: choose your legal team wisely. Ensure they have deep, proven expertise in surrogacy law—not just general family law experience. This decision will safeguard your pathway to parenthood and protect the best interests of your child.

Practical Tips for Intended Parents and Lawyers

Based on the lessons from REN and my years of experience, here are some practical tips:

1. Insist on independent assessments: Make sure that the post-birth independent assessment is conducted by a counsellor who has no prior involvement with the parties. This independence is non-negotiable.
2. Get clear, written reports: Have the relinquishment counselling and independent assessment reports formally prepared and submitted to the court. This transparency helps avoid disputes and delays.
3. Choose experienced legal counsel: Engage a lawyer or law firm that specializes in surrogacy law and regularly handles these cases. Ask about their track record and experience.
4. Don’t cut corners on counselling: While counselling fees can add up, skimping on proper procedures leads to far greater costs—financially, legally, and emotionally.
5. Follow judicial guidance closely: Courts expect strict compliance with the Surrogacy Act. Ignoring or trying to circumvent legal requirements will likely backfire.

Conclusion: Protecting Your Surrogacy Journey from Legal Pitfalls

The REN case is a stark reminder that surrogacy law is a delicate, highly regulated area where attention to detail and adherence to legal requirements are paramount. The intended parents in this case faced unnecessary hurdles because of procedural missteps and a lack of experienced legal guidance. The court’s firm stance on independence and compliance protects not just the parties involved, but most importantly, the welfare of the child.

For anyone considering surrogacy in New South Wales or elsewhere, the message is clear: invest in expert legal advice, respect the counselling and assessment protocols, and never underestimate the importance of following the law to the letter. Your journey to parenthood deserves nothing less.

If you’re navigating surrogacy law, I encourage you to seek out specialists who understand the nuances and complexities of this unique field. With the right expertise, your surrogacy journey can be a positive, fulfilling experience free from avoidable legal complications.