The Pitfalls of Signing a Surrogacy Agreement

The Pitfalls of Signing a Surrogacy Agreement

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page shares advice and pitfalls when signing a surrogacy agreement/arrangement.


G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers, and I’m talking today about the pitfalls of signing a surrogacy arrangement or a surrogacy agreement.

I think the number one bit of advice I want to give you is don’t sign unless you got legal advice first, and let’s be clear, if you’re an Aussie, don’t sign a foreign surrogacy agreement unless you get advice from an Australian lawyer, someone like me, who knows what they’re doing? Why? Well, let’s just talk about a local agreement first.

If you are entering into a local surrogacy agreement, you need to get legal advice from an Australian legal practitioner, because the whole aim of the exercise is not only to enable you to become a parent or you and your partner to become parents, but it’s also to enable associated with that the transfer of parentage, so that not only do you have the child, but you’re legally recognised as the parents.

In order to achieve that under our Surrogacy laws, which apply everywhere but the Northern Territory and soon there, there needs to be independent legal advice for both sides from an Australian legal practitioner. In other words, a lawyer like me, someone who’s out in legal practice, and that needs to be obtained before you sign.

If you sign first and get the legal advice second, then it’s non compliant. You might be able to get around that in making application of the court. But why do you want to put yourself through that stress and that cost, unnecessarily? Better to get it in the right order, don’t put the cart before the horse. If you’re going overseas, it’s actually even more critical.

Because if you happen to be ordinarily resident in Queensland or New South Wales or the ACT, or domiciled in New South Wales, and what you’ve entered into is deemed under Queensland or New South Wales or ACT law, respectively, to be a commercial surrogacy arrangement, you commit a criminal offence.

Great and you’ve done it inadvertently because you didn’t get legal advice here first, and if you come from South Australia or Western Australia and soon likely the Northern Territory, you could also be committing a criminal offence because those places make an offence to enter into commercial surrogacy arrangements or as they’re called in Western Australia, a surrogacy arrangement that is for reward.

Another jargon for what is commercial surrogacy, and you do it overseas, then you can still commit the offence back home. Only if you live in Victoria and Tasmania, don’t you commit an offence. But even if you live in Victoria and Tasmania, have you covered some basic things such as will the child become an Australian citizen as a result of going through this process? Is this agreement non exploitative? I remember many years ago seeing an agreement for surrogacy overseas which said that the surrogate must, there’s no doubt about it, must have a C-section.

So despite one would think her having bodily autonomy about the pregnancy, no she didn’t. Whether she liked it or not, she was going to be subjected to major surgery. So I just give that as a very basic pointer, and if you’re looking at going to places like Canada and the United States.

It’s absolutely vital to have proper health insurance in place and the biggest risk if you’re going to the US is that of not having adequate health insurance, and typically, you will see with the retainer agreements you have with lawyers in the US, with the surrogacy agency in the US, it’ll say something like this, and I’m paraphrasing, all care, no responsibility when it comes to insurance.

Yeah, we’ll help you in every way we can with insurance, but it’s your risk. But getting Australian legal advice first before you sign is absolutely essential. Don’t brush it away, it’s not the most expensive part of the journey. It clearly is not the most expensive part of the journey, but I think it’s absolutely essential.

Finally, a plug. Please, oh please, get my book When Not If: Surrogacy for Australians, you’ll find it on my website, or the Page Provan website. Have a look at it, it talks about my journey, my professional journey, my personal journey through infertility and surrogacy.

But much more importantly, it contains a bundle of resources about surrogacy, and will answer many questions that you never knew existed, and of course, it’s general, it’s not specific advice to you, but have a look at it, it’ll help.

Thank you.

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Family law Practitioners Association
International Academy of Family Lawyers - IAFL
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