The Dangers of Oral Agreements in Surrogacy

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page discusses the dangers of oral agreements in surrogacy.

Transcript

G’day, Stephen Page from Page Provan Family and Surrogacy Lawyers. I’m talking about something formal or informal about surrogacy. As you may have seen from other videos, about one in five Australian children born via surrogacy are born in Australia.

Four in five are born overseas, and I’ve done other videos about trending destinations and the latest top six destinations. But of those who’ve done it, the one in five doing it locally, do you need to have a written agreement?

Can’t you just have an oral agreement? Well, the law in every place other than the ACT and Victoria, in other words, going clockwise around the country, Queensland, New South Wales, Tasmania, South Australia, Western Australia, and from December last year, the Northern Territory, requires surrogacy arrangements to be written.

The reason I would have thought is pretty obvious, namely we’ve got to have certainty of terms. The ACT doesn’t require surrogacy arrangements to be written, they can be oral, and the same in Victoria. Now, what do I think about oral agreements? Well, as I tell you in the story that I’m about to illustrate from a few years ago, oral agreements are worth the paper they’re written on.

They’re not clear. What you might think is clear is not and you just think of some of the things that might be in a written surrogacy agreement. What hospital is the surrogate going to? Does she have health insurance? Is she going private or public? Does she have life insurance or income protection insurance?

Who’s going to pay for that if she doesn’t? Who’s going to pay for the private cover or the private health insurance if she doesn’t have it? Who’s going to name the child? What happens if the child is stillborn? Who has responsibility then? What’s the process at the end, set out explicitly in black and white and this may not seem like such an important deal until you’re in it.

I can tell you my clients who are going through the Greek surrogacy drama are all over this one, confidentiality. If you’ve had a lot of pain about how to create a child or you don’t want your details spread over social media, you want to put it in writing, and it may be that the surrogacy arrangement isn’t considered legally binding for quite a few purposes.

But having the agreement there in black and white that everyone’s signed to really sets expectations well, and this point was really illustrated to me many years ago in two cases that happened about the same time.

Last month was the first time in many, many, many years that I got the late night phone call, We’re in crisis, please help, and last month was because of the Greek surrogacy crisis. The previous time was a gay couple who were intended parents through surrogacy, and what they’d intended to do was to their friend, the surrogate, be a traditional surrogate.

In other words, she was the genetic mother, and they’re going to do IVF. So, one of the guys sperm and her egg were going to be combined in the lab and the result of an embryo was going to be implanted, easy peasy. Except it didn’t work out that way. She’d had four or five pregnancies before.

Everything had worked, everything was great, everything was wonderful, I’ve been pregnant before, I know what life is about. But this time, embryo is implanted, and it’s split. In other words, she’s now carrying identical twins and problem pregnancy from the beginning all the way through.

You just imagine how awful it was, and then when she gave birth rather than simple, straightforward births as before, this one was awful. So she gives birth to these two kids, holds them and then says, oh, I think I want to keep them. Imagine the horror of the intended parents who’ve been friends with the surrogate in one case for 14 years, just imagine that.

That’s why they contacted me late at night and the following morning. That night I should say I just calmed everything down, but the following morning I sent through the sign, Surrogacy arranger, it was pretty ugly. It went like this, see this? See this? Where you’ve signed where it says, We’ve got custody, you don’t see your signature down there? This happened at the hospital bed, pretty awful.

But it was a moment of reckoning because that’s what she had signed. Oral agreement, you can’t do that, and that’s what happened in another case. It was a Victorian case, and somehow, and I wasn’t involved. I should say the first case, it all sorted itself out eventually.

A parentage order was made and subsequently the surrogate became friends again with the intended parents, because the rules were clear and her role was clear. I was just making sure that everyone went back on the straight and narrow.

But in the other case, somehow the lawyers for both sides, so husband and wife and single surrogate decided that it’d be a really good idea, even they’ve had counselling not to have a written agreement, have an oral agreement.

What were they thinking? It then went up to the Patient Review Panel, which is the state regulator in Victoria of surrogacy arrangements, and they gave it the big tick, and away they went. Anyway, the child is conceived and born.

The hospital, in accordance with its usual practice, said, You’re a low risk mom, you don’t need to stick around here in the ward, we’re going to put you in this fancy-schmancy hotel down the road. After all, it’s much more comfortable, it’s cheaper for us too, but you can sleep and the nurse will just check on you, marvellous.

Instead of being in the awful hospital ward, getting checked on every hour or thereabouts with the lights and so on, and noise, and an awful bed, she’s in a comfortable bed and that’s when things went wrong. Child was handed over, great. Problem was when she had to check out from the hotel, a thousand dollars of grog was taken from the minibar.

Now, whether the surrogate and her partner drank it or took it doesn’t really matter. Probably wasn’t worth $1,000, you know how the mark-up on the minibar. But anyway, there it was, there’s the bill.

The intended parents said, Well, we’re not going to pay that. Yeah, but you agreed to pay my reasonable cost. Yeah, but we didn’t agree to pay $1,000 worth of grog. We weren’t going to pay any grog for you as a surrogate, no alcohol, and besides which it’s against the law for us to do so. Yeah, but you agreed my reasonable expense is this is my expense, you’ve got to pay.

But that’s not what we agreed, and of course, the surrogate responded, well, we had an oral agreement. An oral agreement is worth the paper it’s written on. The upshot was that the matter spiralled out of control from that first thousand dollars.

I subsequently became involved with, can you please fix this? I did. But as many thousands of dollars later and great sense of bitterness between the three parties, I was for the intended parents, and they really fell out with their surrogate. It went to court four times in Melbourne.

I had to fly down four times for court until eventually ultimately an order was made. But the division between the surrogate and the intended parents was there, it’s just awful. If they’d had a written agreement which had said loud and clear,

This is what we’ll pay and this is what we won’t, they wouldn’t have had that argument. So oral agreements, they’re not worth the paper they’re written on.

Thank you.