Surrogacy- Back to Basics

Surrogacy- Back to Basics

In this video, Page Provan Director and award-winning surrogacy lawyer, Stephen Page, talks about the basics of surrogacy, for all the need to knows when you begin your journey.


G’day, I’m Stephen Page from Page Provan, Family and Fertility Lawyers and I’m talking about back to basics with surrogacy. You’re starting your journey, and you’re going, well, what do we do now?

Well, the first issue to obviously look at is, do you need to do surrogacy? Well, evidently, if you’re a single man or a gay couple, it’s pretty easy. Although I once had to explain to a judge about a gay couple who couldn’t conceive naturally.

It’s hard to believe I had to explain it, but I had to explain it. But if you’re a single woman or you’re a heterosexual couple, you may think that surrogacy is the solution, and for some it is, but for some it’s not.

You don’t need necessarily to do surrogacy, you might be lucky enough to be able to conceive on your own and carry on your own or you may need the help of an egg donor.

But you’ve got to address that fundamental question first, because I’ve certainly had clients who’ve gone down this tunnel of, we want to spend all this money to do surrogacy, involve a third party, put her at the risk of maternal death, however low or high that might be.

When it turns out they didn’t, all they needed was good IVF, or they needed egg donation. So once you’ve gone past that point, whose genetic material are you using? Now, sometimes it’s really straightforward.

It’s ours, okay. Is the quality okay? Yes. But do you need an egg donor? and I haven’t kept precise statistics, but I’ve advised since 1988 and about 1,900 surrogacy journeys, and about half of my clients are gay couples and about half are straight couples.

There’s been a smattering of single men, many of whom identify as gay, but not all, and single women. Then we had some transgender and non-binary clients and a couple of lesbian couples.

But do you need an egg donor? And of those batch of clients, and three-quarters of them, in rough terms, need an egg donor. Of that group of clients that I’ve had, three-quarters of them need an egg donor.

All the gay couples, self-evidently, all the single men, almost all the single women, the lesbian couples needed an egg donor, and about half the straight couples. So three-quarters needed an egg donor.

If you don’t have an egg donor, then one of the things you then look at is, where do we do it?

Because if you’re not able to identify an egg donor easily, you look at whether you’re creating eggs from overseas, and having them imported, and there are clinics who import eggs into Australia.

But if you have the other missing bit that you need a surrogate, you may then say, well, we’ve got to go overseas because if we create embryos here, we might have the benefit of Medicare in doing so.

We can’t send them overseas, we can’t bring the surrogate from overseas, so it makes it really hard. But let’s assume that you had no difficulty finding an egg donor, and you have no difficulty finding a surrogate. Now, most people don’t find it so easy.

In rough terms, for every child born via surrogacy in Australia, four are born overseas, or to put it another way, one in five are born here. But assume that you’re in that one in five, then how do you actually proceed with the surrogacy journey?

So we have a population of about 26 million. We have six states and two territories, and they’re all different. But I’ll just talk about it in general terms. In general terms, you have to have counselling before you commence your surrogacy journey, and that’s the intended parents and the surrogate and if she’s got a partner, the surrogate’s partner, and both sides get independent legal advice.

So one lawyer for the surrogate and her partner, and one lawyer for the intended parents, and then after you’ve done that and you’ve got the counselling and the legal advice in place, you enter into a surrogacy arrangement.

Now, in two places, the ACT and Victoria, you can have an oral agreement. I’ve done a separate video about why I don’t recommend oral agreements and in most places you then proceed, and I say most places because in Victoria and Western Australian, you have to get approval from the regulator and in Victoria it’s the Patient Review Panel.

In West Australia it’s the Reproductive Technology Council, and to make matters even more complex, if you’re in WA, half the market’s excluded. If you’re a single man or a male couple, you can’t do it.

Where non-binary, transgender, intersex people fall into the mix is unclear because the only people who can do surrogacy in WA at the moment are single women or women who have a female partner or women who have a male partner.

So bit of a mess. WA also requires the donor to sign up to the deal and must have counselling and legal advice. Thankfully, nowhere else, and then away you go, and then after the child is born, you get an order from the court saying that you’re the parents.

But it’s easy to put the cart before the horse. I remember some years ago, I saw a case where that had happened. The couple had got everything together, they got their surrogate.

I can’t remember whether she had a partner or not. They had counselling before they entered into the surrogacy arrangement, each side got independent legal advice, and they had a written surrogacy arrangement which everyone had signed and presumably was compliant with the law of that state.

You go, okay, well, that all sounds pretty good. Obviously, the clinic was happy to provide treatment. The answer was no, not at that stage, and why? The couple had missed out on the obvious main point, was the surrogate suitable to carry?

If she wasn’t suitable to carry, then what was the point of going through all this psychological process of wanting to be parents through surrogacy and carrying through with counselling and getting legal advice and waiting and spending money.

There was no point to it. So the obvious first step is when you get a surrogate, if you believe that you have someone who is viable to be your surrogate, go and get her.

I’ve seen reference to surrogates being people, you could have a trans man being a surrogate. Yes, it could happen, haven’t seen it happen. Typically, the surrogate will be a woman, and get her to be seen by a doctor who has specialty.

It’ll either a fertility specialist or an obstetrician to see if she’s suitable. If she is, great, and away you go. After the child is born, wherever it is in Australia, there will be an order made.

Usually, you can’t apply for it for a month afterwards and up to six months, although in South Australia, a year. Transferring parentage from the surrogate, if she is a partner, to the intended parent or intended parents.

When that order is pronounced, even before the paper version is given, the intended parents are the parents, and the formal legal process has finished. So that’s surrogacy back to basics, and if you want to know how much you’re going to spend, it varies state by state.

Western Australia is the most expensive. I’d add another 10 or 15,000 there to that scene in, for example, Queensland, New South Wales, South Australia. There I’d say 70,000. So 70,000 is a ballpark figure of Queensland, New South Wales, South Australia.

Western Australia, say 85,000, Victoria, say 80,000. Tasmania, ACT, Northern Territory, let’s say 70, and what does that comprise? Well, about 20 to 25 is the legal costs, getting surrogacy lawyers both sides, counsellors, all that stuff and the balance is the cost of IVF, and what’s hard to say is how many cycles you get and whether the clinic will give you a Medicare rebate, and I’ll cover that in another video.

Thank you.

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