The Case of Seto & Poon and What You Should Learn from it

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page reviews a difficult case the Family Court looked at last year — the Seto & Poon case.

Transcript

G’day I’m Stephen Page from Page Provan Family and Fertility Lawyers, welcome. Today I’m talking about a really difficult case that the family court looked at last year called Seto and Poon. It’s one of those cases you go, what were these people thinking? It was about surrogacy.

But when you start going through it, you go, oh, I wish, I wish they’d done it right at the beginning and not screw it up as they did. So there were two couples, husbands and wives, and they were of Chinese origin, I don’t know where in Asia they came from, whether it’s from China or Malaysia or Taiwan or wherever it was in Asia, but nevertheless, they were Chinese.

They spoke Cantonese and they chatted with each other via We Chat, and one of the wives said to the other wife, look, I’ll be your surrogate and from that point of view, nothing particularly out of the ordinary, really, one would think a wonderful thing.

However, money then became a topic because the couple where the woman was to be the surrogate, wanted $70,000 to assist them in becoming Australian citizens and be able to migrate here and there was an agreement about this.

So the starting point on that is, depending on where they lived at the time, and I don’t know where they were living at the time, but clearly at the end of the process, the intended parents lived in New South Wales, they may well have committed offences under the Surrogacy Act of New South Wales, which makes it an offence to enter into or to offer to enter into a commercial surrogacy arrangement anywhere in the world if you are ordinarily resident or domiciled in New South Wales.

In other words, New South Wales is your permanent home. So away they go, they agree on this deal. Did they document it by going to see lawyers at that point, Australian lawyers at that point, and counsellors as the process under the Surrogacy Act says? No. No legal advice it would appear at that stage, and they didn’t go off and get counsellors at that stage.

What did they do instead? They had some kind of agreement written in Cantonese between them, and I haven’t read the agreement, even the translated version so I can’t really tell you what was in it. The judgment isn’t that clear, but it was pretty vague, and so they decided that, well, now is the time to start.

So how did they decide to start? One would think that if they were engaging in surrogacy, that what they would do is then go off to an IVF clinic and then create some embryos of the intended parents DNA, or maybe that of donors, to enable them to be young parents, that isn’t what they did.

What they did was that the intended father had sex with the surrogate and it appears that occurred four times with the intention of trying to conceive a child. It didn’t work, it didn’t work. So imagine what dynamic there was in both of those relationships at the time of doing that.

Then they decided to go to an IVF clinic and I think what’s telling about the judgment is the lack of information about independent legal advice, about counselling, and so on. So that says to me that the IVF clinic that they went to was likely not one in Australia, it was likely one overseas.

Anyway, unlike having sex, the IVF worked and two embryos were implanted, they resulted in pregnancy and by about Christmas 2020, the surrogate gave birth to these children in New South Wales. It was at this point that there was a fallout between the intended parents and the surrogate and her husband.

At which point, and it’s not clear, I should say it’s not clear that the IVF clinic was told that there was surrogacy. It may well have been because the surrogate got pregnant, but she went along to the clinic, there may have been some representation that was different to the truth.

But in the event, she gives birth and then she and her husband want money and astoundingly a letter is written by a lawyer on their behalf, an Australian lawyer, referring to the Surrogacy Act of New South Wales, noting that New South Wales does not allow commercial surrogacy, and demanding, by way of the reasonable expenses, that’s what it was described as, all the reasonable costs, $290,000 Australian.

So what would appear on its face to be an act of extortion? Something that is clearly over the top in terms of expenses and to put it into perspective, $290,000 is about the same as what you would spend if you went to the world’s most expensive surrogacy agency, which happens to be very, very, very good and doesn’t involve itself in acts of extortion, it’s a smooth journey.

So here is the world’s most expensive surrogacy journey, or close to it, with this demand for $290,000. No surprise that the intended parents did not pay it, and the children remained with the surrogate. The result was that the intended parents immediately brought proceedings in the family court, and the poor family court judge had to deal with this mess.

What was the outcome? Well, no surprise that the children ended up with the intended parents, and no surprise that the family court judge referred all four parties to New South Wales authorities for investigation as to whether they had committed offences under the Surrogacy Act.

But in addition to that, the judge notified the lawyer involved that she had a case to answer to give her the opportunity before she was referred to authorities, including the Legal Services Commission of New South Wales, the body responsible for discipling lawyers.

What did this lawyer do? Take her file, the file of her clients, remove it from that law firm, resign from that law firm, not tell her employers about this process, this complaint process that was happening, and just took off, disappeared. So the employer law firm discovered that the employee had left, the file had gone, and none the wiser as to what had occurred.

So here is an example where intended parents, surrogate and a husband should have got legal advice from an Australian legal practitioner right at the beginning, done it right, and not ended up in a terrible, terrible mess.

If you want to know how to do surrogacy right, go and look at my book, When Not If: Surrogacy for Australians, you can find it on my website, Stephenpage.com.au or through the Page Provan website. It’ll talk about my professional journey with surrogacy, I’m up to about 1,800 surrogacy journeys I’ve advised about since 1998.

It also talks about my personal journey through infertility and surrogacy. But much more importantly, gives you bucket loads of information about surrogacy. There’s more there than you could dream about. Go and have a look at it, and it’ll help you on your journey. Good luck.