The roles of lawyers in surrogacy arrangements

The roles of lawyers in surrogacy arrangements

Yesterday I presented to the LexisNexis family law summit in Brisbane. Here is my paper:

The role of lawyers
7 June 2012
Stephen Page[1]
Harrington Family Lawyers
1.     Concepts
1.1 What is surrogacy?
Surrogacy is when a woman agrees to be pregnant and carries someone else’s baby until birth.  In this paper I will use two internationally accepted terms: “surrogate”– although the Surrogacy Act 2010 (Qld) refers to “birth mother”, and “intended parents” – although the Surrogacy Act refers to “intending parents”.
1.2 Traditional surrogacy
This occurs where the surrogate is genetically the mother of the child.  In the past the child would have been conceived naturally.  More recently, artificial insemination has been used via a syringe or a turkey baster.  Traditional surrogacy is legal in Queensland, but will not be facilitated by an IVF clinic.  Doctors however render assistance after the surrogate is pregnant. Traditional surrogacy is not recommended.
1.3 Gestational surrogacy
The surrogate has no genetic relationship to the child.  She is merely the surrogate.  IVF is used to ensure that conception occurs. Gestational surrogacy necessitates the use of an IVF clinic.  The egg and sperm may not be that of the intended parents.  There is no prohibition in Queensland to use both donor egg and sperm.  In reality it may be very difficult to use a donor egg as delays of between 2 and 7 years have been cited as to the waiting list for donor eggs.
1.4 Altruistic surrogacy
The surrogate acts as surrogate through a sense of altruism.  It is to be contrasted with commercial surrogacy.  Altruistic surrogacy is legal in Queensland and, provided it is legal elsewhere, for a Queenslander to participate in it elsewhere.  There is a form of regulation of altruistic surrogacy under the Surrogacy Act 2010(Qld).
1.5 Commercial surrogacy
Typically the surrogate is paid a commercial fee.  A brokerage may be involved.  Commercial surrogacy is available in India, Thailand, and parts of the United States.  It is illegal here for anyone ordinarily resident in Queensland to engage in commercial surrogacy whether in Queensland or anywhere else in the world, including in India, Thailand or parts of the US, even though commercial surrogacy may be legal there.
2.      How do we regulate surrogacy in Australia?
3.     Issues for lawyers
2.1 Legal minefield
When a child is conceived other than naturally it can be a legal minefield as to the rights and interests of each party involved.
2.2 Role of lawyers: no criminality
Our role is two-fold.  First, we must actively discourage those who are ordinarily resident in Queensland from engaging in commercial surrogacy overseas.  There are many Queenslanders who still are engaged in this practice.  Commercial surrogacy has been banned since 1988 including extra-territorially.[2]
We need to be aware of relevant offences and advise our clients accordingly.  I will touch on these below.
2.3 Some do’s
Secondly, in respect of altruistic surrogacy we need to take a different approach to that traditionally taken by family lawyers in Brisbane.  In essence we need to take a collaborative approach.  I do not mean through the strictures of a collaborative law agreement.  What I mean is that the process of obtaining a child through surrogacy is ultimately a cooperative one, built on layers of trust that will hopefully last the lifetime of each of the players.  It is very easy for a lawyer, in the zealous protection of that lawyer’s clients, to sow distrust, which ultimately may be severely to the detriment of any child and of the other players.
The role of a lawyer is in my opinion to balance the protection of the client’s interests (which of course is a lawyer’s primary focus), but also, especially in a surrogacy matter, act in a spirit of trust, cooperation and collaboration.
An owner of a highly successful surrogacy clinic in the US[3]  has described the process of surrogacy as being successful when there is flexibility between the parties, open communication between them, and an awareness and sensitivity to the needs of the others. It is essential that we as lawyers foster this approach to be used by our clients. The process of trust between the surrogate, her partner and the intended parents, is vital. If it’s gone, then it is almost impossible to restore.
Surrogacy is a process of love in which a baby is hopefully conceived and born.  It is easy for us as lawyers to destroy that love and we must be mindful not to do so.
The process of altruistic surrogacy is an uneasy mixture of the practice of law, IVF technology, counselling, human emotions and the natural process of pregnancy and childbirth.  Mixed into this brew, is often the pent up desire of many years of frustration and cost on the part of the intended parents, together with the desire of friends or family to provide them with the joy of a child.
Some intended parents have tried for many, many years to conceive a child. Following unsuccessful attempts au naturel, they may have tried IVF for 15 years. To put that into perspective, they might have tried to conceive a child from the ages of 22 to 38, before trying surrogacy. The attempts to conceive a child, with its rollercoaster of hardship, has in many ways dominated their relationship. The process in which these clients have been through can be a soul destroying one.
When these clients have come to you, they have discovered the holy grail: most likely the last and only chance that they have to conceive and raise their own child.
2.3 Don’t forget the cycle
One of the curious features about surrogacy is that the timetable of the parties is often predicated on the surrogate’s cycle, so as to maximise the chances of pregnancy. You should expect to turn around work quickly.
2.4 Clients talk
We have all had cases where two warring family law clients talk to each other, sometimes comparing the advice of each of their lawyers, and at other times comparing the bills. With surrogacy, the intended parents talk to each other about the process. It is not unusual for all of the parties to attend each lawyer, at least initially. What is necessary about this process is to be absolutely clear about who is and who is not the client, and about the potential waiver of privilege.
You should expect that your clients will show your letters of advice to them to the other side.
You should expect that sometimes there will be a difference of opinion between lawyers about legal issues. I normally become aware of this problem in surrogacy matters when my client tells me what the other lawyer has advised the other parties. Assuming that the apparent difference is significant, it may need to be raised with the other lawyer in as sensitive manner as possible. Using the telephone is often the best solution.
2.5 The option of no surrogacy arrangement
This is perfectly legal, provided that the surrogacy is altruistic, not commercial. However, without a written surrogacy arrangement in place, a clinic will not treat, and the Children’s Court will not make a parentage order. It is not recommended.
2.6 Some don’ts
Handled sensitively, the process of surrogacy should proceed smoothly.  I will give two examples of where we as lawyers could have done better:
  • The surrogate insisted as a term of the surrogacy arrangement that the intended parents not be present during the birth of the child or on any occasion when she might have a medical appointment when she might be naked or partly naked.  In essence, this may well mean that the intended parents have no bond with the child prior to the birth of the child, with potential long term damage to the parent/child relationship, relationship between the intended parents, the relationship between the surrogate and the intended parents, and most importantly to the child.
The upshot of that case has been that after she gave birth, the surrogate handed over the child, signed a form to register the birth with the child to have the surname of the intended parents, and co-operated with the surrogacy guidance report process. One might think that it was all plain sailing at that point. It wasn’t: the surrogate changed solicitors (so there wasn’t the continuity of engagement and advice), and the surrogate has refused to sign the paperwork to enable a parentage order to be made.
  • The lawyer for the surrogate advised the surrogate that she could and should insist, as it was her right, to the intended parents not having access to her medical records and that she could and should insist, as it was her right, to the intended parents not being present at the birth.  Both pieces of advice were no doubt legally correct.  The surrogate was most upset, thinking that the lawyer missed the point about surrogacy and the building of trust and love, and immediately reported the conversation to the intended parents who were as deeply upset about the advice that had been given.  It is essential in my view that the surrogate is aware that she has such a right but is also aware that by insisting on that right will inevitably harm the relationship with the intended parents and potentially with the child.
2.7 Counselling, counselling and more counselling
The Surrogacy Act requires there to be counselling of all parties before signing the surrogacy arrangement, and that a surrogacy guidance report be obtained after the child is handed over. It is strongly advised that the parties get a decent amount of counselling beforehand. This would be in the range of 4 to 8 hours each. Some clients are reporting to me that they have received as little as 1 or 2 hours. In my view this is nowhere near enough.
The Australia and New Zealand Infertility Counsellors Association has issued draft guidelines about surrogacy counselling. It is important that counsellors discuss the full range of what can go wrong with clients. Sometimes they don’t, which can be a shock to clients when they have had counselling, and then hear from a lawyer for the first time as to what can go wrong.
If an egg or sperm donation is required, counselling is also needed for that process. Usually, the one counsellor should cover both. If a change of plan occurs, so that a donation is needed, it is best to avoid having to double up counselling, and if at all possible go back to the original counsellor for top up counselling. Otherwise there could be another four to eight hours of counselling!
It is also advisable that clients speak to others who have been through the process such as members of the community group Surrogacy Australia[4].
It is important that clients pick a good counsellor. A counsellor who, for example, crosses himself repeatedly in a religious fashion during counselling is not a good pick. It must be said I was fairly amazed when told this by clients. Clients have their own personal demons in undertaking surrogacy. The process of surrogacy is not for the faint hearted. The last thing that they need is to have their personal circumstances judged.
It is a case of horses for courses. A new client of mine, a psychologist, had chosen the counsellor, who as it turns out was a psychologist. My client asked: “What is the point of doing the MMPI? It’s completely useless for this stuff.” I sent her and her husband to a social worker for counselling.
A safe bet is for the client to select someone who is a member of ANZICA, the Australian and New Zealand Infertility Counsellors Association.
It is a good idea for this initial counsellor to see all the parties. They are more likely to get to the nub of whatever issues might arise in the surrogacy arrangement and subsequently. There is no prohibition to the one counsellor seeing all.
It is essential, in my view, that there be staged regular follow up counselling for the surrogate, her partner and intended parents during the pregnancy and after the birth. This is not a legislative requirement, but in accordance with the practice of Australia’s pioneer of surrogacy, Dr Martyn Stafford-Bell. Dr. Stafford-Bell suggests counselling at 12, 28, 35 weeks of pregnancy, and 6-8 weeks post-partum, and 3, 6, 12 months after delivery. He also recommends that the patient or surrogate is able to contact the clinic nurse or counsellor at any time if concerned.[5]
2.8 Who wants to be a surrogate?
Typically the surrogate is a family friend or relative.  The surrogate (and if she has a partner, her partner) has a firm view that those who are childless ought to have the joy and privilege of children.  Typically the surrogate falls pregnant easily, gives birth easily and has few complications.  For her pregnancy is a breeze and a joy by which she can share the joy and privilege of the birth of children with others.
Of interest, from discussions I have had with the owners of surrogacy clinics in California, although surrogates are being paid there, the typical surrogate there matches the profile of surrogates here.  Those who are primarily motivated by money are excluded.  Clinic owners there suggest that women who are primarily motivated by money are much more likely to abort or not relinquish the child, than those motivated by a sense of altruism.
4.      The risks of surrogacy
The belief of all who take part is that it will be happily ever after. It is our duty as lawyers to tell our clients what might go wrong.
In my view there are three types of risk:
  • Medical risks
  • Relationship risks
  • Legal risks
4.1 Medical risks
As one of an ART clinic told me: “Any woman who would willingly be a surrogate, because of the medical risks, must be mad.
Intended parents, in their desperation to have children, do not want to harm others. The reality of pregnancy and childbirth is that there are risks, and these are slightly higher than for children conceived naturally.
The risks include:
  • The surrogate does not become pregnant.
  • More than one child is conceived.
  • The surrogate could die.
  • The baby could die, or if twins, one could die. This could be a miscarriage or a stillbirth, or shortly after birth.
  • The surrogate could be disabled or have permanent medical problems, such as hypertension, diabetes, back injury or depression.
  • The baby could be disabled. While clients might have thought: “We would take a disabled baby”, there are levels of disability!
  • The surrogate could have an abortion or refuse one.
Evidently, appropriate life, disability and health insurance for the surrogate is highly desirable, but may not be able to be obtained (especially for disability and health insurance).
4.2 Relationship risks
There are risks associated with relationships, such as:
  • The surrogate splits up from her partner, and doesn’t want to proceed.
  • The intended parents split up, and don’t want to proceed.
  • One or both intended parents die.
  • There is a breakdown in the relationship between the surrogate and the intended parents.
  • The surrogate wants to keep the child, or put it up for adoption.
4.3  Legal risks
These include:
  • A surrogate or her partner refusing to co-operate in obtaining a parentage order application.
  • An inability to obtain a parentage order.
  • An inability to name the intended parents as the parents of the child on the birth certificate.
  • The inability to fix matters by not being able to adopt.
  • Litigation in the Family Court.
  • Inheritance issues not being clarified.
  • Child support risks.
4.4 More detail:  The surrogate does not relinquish
Intended parents who have focused for so long about having a child focus on what they consider to be the biggest risk, the risk that the surrogate ultimately will not hand over the child.
I was once involved in such a case.  Over 20 years ago a woman attended upon me for advice.  She told me that she had been paid $10,000 by a couple to have a child and she had decided to both keep the money and the child.  She had figured out that the couple would likely be prosecuted under the then Surrogate Parenthood Act 1988 and therefore would not go to authorities to seek repayment of the money.  Ultimately as far as I am aware there were no court proceedings concerning the child, so she was probably right in her confidence.
Re Evelyn [1998][6]was a Brisbane case in which a Brisbane childless couple were approached by their Adelaide friends to have a child by surrogacy.  The husband from Adelaide was a doctor, who facilitated the whole procedure.  Surrogacy at the time was illegal both in Queensland and South Australia.
The surrogate gave birth to the child and handed it over to the intended parents.  Within a few weeks, when she and her husband went to visit the child, she did not let go of the child and was allowed by the intended parents to take the child with her.
The matter ended up in the Family Court.  Jordan J ordered that the child live with the surrogate and her husband in Adelaide.  An appeal to the Full Court was unsuccessful and leave was not obtained from the High Court.
The key feature about Re Evelyn in my view is that unlike the thorough procedure required under the Surrogacy Act, no-one had counselling or legal advice before entering into the arrangement and in many ways therefore the whole arrangement had a high risk of failure.
The one reported case under the Surrogacy Act,  BLH & HN v SJW & MW [2010][7], which I discuss below,  involved a child conceived and born prior to the commencement of the Surrogacy Act in 2010.  A parentage order was made in favour of the intended parents.  Most significantly, the Courier-Mail reported several weeks ago that the surrogate, whom the Courier- Mail nicknamed “Rosie”, regretted handing over the child.  Reading the Courier-Mail’s story was akin to hearing the stories of women who had their children adopted out in the 1970’s.  What struck me about the surrogacy process entered into by the surrogate and the intended parents was that it was entered into before the Surrogacy Act was enacted.
More detail:  Risk: Abortion
As will be outlined below, the surrogate is like any other mother. She can control her body. An injunction to prevent the abortion will be very hard, if not impossible, to obtain.
5.       Pre 1 June 2010
There are two significant features:
(a)   It was an offence for any form of surrogacy in Queensland to be committed and for anyone ordinarily resident in Queensland to engage in surrogacy, wherever that might occur.[8]
(b)   There was in effect an amnesty period for altruistic surrogacy, so that on the commencement of the Surrogacy Act 2010 on 1 June 2010, intended parents could make application to the Children’s Court for a parentage order.  This window of opportunity ceased on 31 May, 2012[9].
6.            From 1 June 2010
The Surrogacy Act 2010commenced on 1 June 2010.  It has three significant features:
1.      It legalised altruistic surrogacy in Queensland, and set up a system of regulation.
2.      It continues the ban on commercial surrogacy in Queensland and by those ordinarily resident in Queensland engaging in commercial surrogacy anywhere else, including overseas jurisdictions such as India, Thailand and the United States.
3.      It amended the Births, Deaths and Marriages Registration Act and the Status of Children Actso that lesbian couples undertaking ART can both be recognised as “mother” and “parent” on the child’s birth certificate.  This change is retrospective in the sense that if a child is born before 1 June 2010 both women can be recognised on the birth certificate, provided that the father is not named on the birth certificate.[10]
7.                Lavarch Inquiry
Former family lawyer and Attorney-General, Linda Lavarch, headed a Parliamentary inquiry.  Its terms of reference were to only deal with altruistic surrogacy.  The committee was not charged with enquiring as to the benefits or detriments of commercial surrogacy.
In its issues paper the committee noted:
“In February 1983, the Queensland Government appointed a “special committee” to enquire into laws relating to artificial insemination; in vitro fertilisation (IVF); and other related matters, including surrogacy.  The special committee, chaired by the Hon Justice Demack, reported in March 1984.  It recommended that whilst altruistic surrogacy contracts should be void or legally unenforceable, entering into them should not be a criminal offence.”
However, the Queensland Parliament legislated to prohibit all forms of surrogacy in 1988.  It was argued that:
·         It was dehumanising to use and pay another human being to reproduce;
·         Babies must not be used as commodities; and
·         Queensland should seek to avoid the trauma and legal battles associated with surrogacy in other jurisdictions.
The issue was again canvassed by a Task Force on Women and the Criminal Code.  In its report, released in 2001, the task force noted the range of community views on the matter.  Although the task force was divided on some issues, it took a consensus view that the Surrogate Parenthood Act 1988 be amended to remove the sanction on altruistic surrogacy as:
·         It was generally felt inappropriate and unhelpful to involve the criminal justice system in this intensely private matter between relatives and friends.
It also recognised that, if surrogacy agreements were to be permitted in Queensland, the extent to which they should be regulated would need to be addressed.  The Government did not support the task force recommendations regarding surrogacy at that time.  A review of surrogacy laws is currently occurring in a number of Australian jurisdictions.
On 14 February 2008, Anna Bligh, the then Premier, tabled a briefing paper outlining a case for reform and stated that: “The Queensland Government believes the time has come to decriminalise altruistic surrogacy”.  The Premier called for the establishment of this committee to further examine whether altruistic surrogacy should be decriminalised and what regulation might be desirable.”
The committee then went on to say in its issues paper:
“There are a number of factors influencing this renewed focus:
.   Very few Australian born children are now available for adoption (only 14 locally born children were adopted in Queensland in 2006-07);
.   There has been an increased use and social acceptance of infertility treatment or assisted reproductive technology (ART) over the last decade; and
.   There is greater social recognition of the diversity of family types raising children, including extended, nuclear and blended families and families headed by single parents and same-sex couples.
Some of the impetus for reform also appears to have come from those concerned about a lack of legal recognition of parents and children in surrogacy arrangements.  It is suggested that this can lead to practical difficulties, for example, in relation to passport applications, medical treatment, eligibility for child support if commissioning parents separate, eligibility for social security and taxation allowances and inheritance.”
The Lavarch committee report[11]stated in part:
“This investigation into the decriminalisation regulation of altruistic surrogacy in Queensland has presented each member of the committee with significant philosophical and moral challenges.  It has caused us to collectively reflect on the role of government in people’s lives.  It has reminded us all of our responsibility as legislators in this State.  The committee has agreed that the Queensland Government’s role should be to develop a legislative and regulatory framework which balances the protection of vulnerable people from harm with the promotion of liberty of consenting adults.  The committee acknowledges its deliberations and these important matters have been noted by the advice received from a number of people with expertise in ethics and philosophy.
The committee is aware that not all Queenslanders may choose altruistic surrogacy for themselves or approve of it for others.  However, for some people in Queensland society, altruistic surrogacy provides the only realistic opportunity to create a family.  Over the last decade, on average, only eighteen children born in Queensland have been available annually for adoption.  As trends in adoption, deferred family formation and infertility appear persistent, it seems sensible for the government to create an environment that maximises the possibility for success in having families created through altruistic surrogacy ….
The committee’s focus on informed consent through the careful preparation of the parties in the prevention of forced relinquishment aims to address identified risks whilst respecting the liberty of freely consenting adults.  In developing its proposed regulatory approach, the committee has benefited from the work of previous inquiries in Victoria, South Australia, Western Australia and Tasmania.  We have also learned much from the policy approach outlined in the Australian Capital Territory (ACT) Parentage Act 2004 and the procedures developed by the 2 fertility clinics, Canberra Fertility Centre and Sydney IVF, which have pioneered IVF surrogacy over the last decade in Australia.  The development of the committee’s regulatory approach has also been enhanced by the information, advice and insights provided by a range of medical specialists, infertility counsellors, legal experts, researchers and policy officers in Queensland and interstate.
The committee has concluded that whilst prohibition may have dissuaded some, it has not prevented altruistic surrogacy occurring in Queensland … To promote the best interests of the child, the committee wants to ensure that children born of altruistic surrogacy are not stigmatised by the manner of the conception and not disadvantaged by the lack of legal recognition of their intending parents, for example, in terms of child support or inheritance.  The committee’s proposal for a specific mechanism to enable the transfer of legal parentage is an expression of this principle.”[12]
The recommendations of the committee included the following:
Recommendation 2: Significance of language
The committee recommends that the Queensland Government, when formulating legislation, guidelines and policy, uses the terms:
.   “birth mother” to describe the surrogate mother;
.   “intending parents” rather than “commissioning parents” to avoid the use of perceived dehumanised or commercialised language; and
.   “altruistic surrogacy arrangement” rather than “agreement” to emphasise the altruistic nature of the endeavour.
Recommendation 3: Decriminalisation supportive of appropriate legislation and regulation
The committee recommends that the Queensland Government decriminalises altruistic surrogacy supported with an appropriate legislative and regulatory framework as described in later recommendations.
Recommendation 5: Defining altruistic surrogacy
The committee recommends that the Queensland Government defines altruistic surrogacy in the Surrogate Parenthood Act 1988 as: a clear arrangement, with a formal or informal, agreed pre-conception between consenting adults for the birth mother to bear a child for the intending parent/s and to permanently transfer the responsibility for the child’s care and upbringing to the intended parent/s after the child’s birth.
Recommendation 6: Further examination of traditional Torres Strait Islander “adoptions”
The committee recommends that the Queensland Government considers options for the recognition of traditional Torres Strait Islander “adoptions” [I note this was not taken up].
Recommendation 7: Reasonable expenses
The committee recommends that the Queensland Government ensures the appropriate legislation and/or relevant regulation:
.   permits reasonable expenses for altruistic surrogacy as long as there is no material gain for the birth mother;
.   defines categories of permitted expenses as follows: medical, legal, counselling, travel/accommodation, child care and insurance costs and lost earnings which are directly attributable to the altruistic surrogacy arrangement and not covered by existing entitlements or benefits.  Paid maternity leave will be limited to a maximum of 2 months associated with the birth and additional leave during pregnancy where medically indicated; and
.   clarifies that payment of reasonable expenses is not enforceable as part of altruistic surrogacy arrangements.
Recommendation 8: Prohibition of advertising and brokerage
The committee recommends that the Queensland Government prohibits advertising and brokerage for altruistic surrogacy.
Recommendation 9: Articulating policy principles
The committee recommends that the Queensland Government articulates five key policy principles supported by specific outcome statements in legislation to guide the regulation of altruistic surrogacy in Queensland.  The best interests of the child are articulated under the committee’s first three proposed principles.  The five principles are as follows:
.   every child is nurtured, loved and supported;
.   every child has access to his/her identity;
.   every child enjoys the same status and legal protection irrespective of the circumstance of his/her birth or the status of the parent;
.   the long-term health and wellbeing of the parties to a surrogacy arrangement and the families is promoted; and
.   the autonomy of consenting adults in their private lives is respected.
Recommendation 10: Genetic connection with intending parents and birth mother
The committee concludes that it is desirable to pursue gestational surrogacy and it is desirable for at least one intending parent to contribute their gamets where possible.  However, given the difficulties of accounting for people’s differing capacities and beliefs in relation to genetic connection, the committee recommends that the Queensland Government:
.   avoids a prescriptive approach on genetic connection; and
.   permits the use of the birth mother’s egg, donor gamets and donated embryos on accessing ART endorsed by the Surrogacy Review Panel on expert advice that:
(a)    surrogacy is needed; and
(b)   the parties are prepared for possible risks.
Recommendation 11: Genetic relationship and transfer of legal parentage
The committee recommends that the Queensland Government maintains the status quo where the birth mother is automatically recognised as the legal parent irrespective of her or the intending parents’ genetic relationship with the child.
Recommendation 12: Enhancing existing ART assessment and support processes
The committee recommends to the Minister for Health that Queensland Health enhance existing standards for assessment of support for altruistic surrogacy in ART services with provision for:
.   psychosocial assessment which is independent from psychosocial support;
.   further specification of the content and amount of independent psychosocial assessment counselling;
.   provision of opportunities for counselling during pregnancy and after birth for the birth mother, her partner and intending parents;
.   independent medical assessments for the birth mother and intending parents to assess health risks, need for surrogacy and any issues impacting on the capacity for long-term care of the child;
.   specialist, independent legal advice by a qualified lawyer provided separately for the birth parents and intending parents;
.   a legislatively based Surrogacy Review Panel appointed by Queensland Health including members with relevant experience in medicine, family law, ethics, psychosocial health and child development and a community representative to approve all applications for altruistic surrogacy and to inform the development of evaluation of ART standards in relation to altruistic surrogacy; and
.   a three month cooling off period after approval by the Surrogacy Review Panel before proceeding with treatment.
The committee also recommends that the panel be sufficiently resourced to operate in a timely way and provide easy access to applicants across Queensland.
Recommendation 13: Support for the implementation of standards
The committee recommends to the Minister for Health that Queensland Health support the implementation of enhanced standards for altruistic surrogacy in the ART services by ensuring the agency:
.   has relevant policy research expertise in relation to altruistic surrogacy; and
.   supports relevant training and professional development opportunities for infertility counsellors, nurses and clinicians, members of the Surrogacy Review Panel and family law specialists in consultation with the ANZICA, fertility clinics, the Fertility Society of Australia and other experts.
Recommendation 16: Criteria for intending parents and birth mothers
The committee recommends to the Minister for Health that additional standards be developed under the Private Health Facilities Act1999 to include criteria for intending parents and birth mothers seeking assistance from ART.  The committee proposes:
.   the intending parents and the birth mother and her partner have the capacity to enter an arrangement;
.   have participated in independent psychosocial and medical assessment;
.   have obtained separate legal advice from a qualified lawyer;
.   intending parents demonstrate a need for surrogacy (due to medical infertility or an inability to carry a child or identified health risk);
.   at least one intending parent is an Australian resident;
.   the proposed pregnancy poses no significant health risk to the birth mother and she has experienced a previous successful pregnancy.
Recommendation 17: Rights of birth mothers to manage the pregnancy and birth
The committee recommends that the Queensland Government confirms that birth mothers engaged in altruistic surrogacy arrangement have the same rights to manage their pregnancy and birth as other pregnant women.
Recommendation 18: Unenforceability of surrogacy arrangements
The committee recommends that the Queensland Government ensures altruistic surrogacy arrangements remain unenforceable under State law.
Recommendation 19: Mechanism for transfer of legal parentage specific to altruistic surrogacy
The committee recommends to the Queensland Government that it:
.   provides for the transfer of legal parentage for altruistic surrogacy under the Surrogate Parenthood Act 1988, the Status of Children Act 1978or other suitable Act with the following conditions:
          the arrangement falls within the proposed legislative definition of acceptable altruistic surrogacy arrangements (ie it is non-commercial, made pre-conception and parties have reached legal adulthood);
          intending parents demonstrate a need for surrogacy based on advice from the Surrogacy Review Panel or a medical specialist or, in the case of traditional Torres Strait Islander “adoptions”, customary practices verified using a similar process to that used in the Family Law Court;
          the parties meet informed consent requirements including:
.    the birth parent/s consent to the transfer of legal parentage;
.    the child is resident with the intending parent/s;
.    birth parents and the intending parents have received separate legal advice from a qualified lawyer; and
.    all parties have undertaken post-birth counselling as evidenced by a report from an ANZICA counsellor or a suitably qualified psychologist, social worker or psychiatrist focusing on quality of informed consent, child’s right to information and ongoing communication between the parties;
          at least one of the intending parents is in an Australian resident;
          the approval of transfer is made no sooner than four weeks after birth and an application for transfer is made no later than six months after birth; and
          the transfer is considered in the best interests of the child;
.   provides for the transfer of legal parentage for any existing altruistic surrogacy cases which fall outside the six month criteria for a two year period following the decriminalisation of altruistic surrogacy provided they meet all the other conditions detailed above; and
.   ensure that applications for the transfer of legal parentage come under the jurisdiction of the Supreme Court.
Recommendation 22: Register of genetic information
The committee recommends that the Queensland Government:
.   develops a central register to protect information of the child’s genetic parents and circumstances of birth in relation to altruistic surrogacy, having regard for the possible benefits of such a service for other children born of donor gamets;
.   considers the relative merits of the placement of the register, having regard to possible synergies with ART regulation, within Queensland Health or with birth registration within the Register of Births, Deaths and Marriages; and
.   supports the development of a national best practice approach to the operation of registers and birth certificates.
Recommendation 23: Ongoing support to health for intending parents
The committee recommends that the Queensland Government develops a strategy to:
.   support parents of children born of altruistic surrogacy or gamet donation of all ages to “tell” them about their genetic parentage and circumstances of birth;
.   promote the role of the register as proposed in Recommendation 22 and provide easy access to a child’s information; and
.   facilitate the exchange of information between parties.
Recommendation 24: Advocating for Medicare funding
The committee recommends that the Queensland Government advocates the Australian Government to provide Medicare funding for altruistic surrogacy.
8.     The Bills
Subsequently there were two Bills before State Parliament.  The government and opposition bills were identical, save that the government bill included as intended parents same-sex couples and single people, and allowed for the registration of lesbian co-mothers on birth certificates (which was identified as an issue by the committee), but the Opposition bill did not.
The Government Bill was passed.  A conscience vote was allowed.  The Opposition, all the independents and two ALP members voted for the Opposition Bill.  All other Government members voted for the Government Bill.[13]
It is not known with certainty if the LNP Government is intending to amend the Surrogacy Act 2010 to exclude single and same sex couples as intended parents. The LNP indicated before the election that it was not seeking to amend the Act. However, with:
·        Confusing sounds made by the Government about the nature of the repeal of civil partnerships;
·        The unprecedented axing of almost all funding to the body closest associated with gay issues, the Queensland Association of Healthy Communities;
·        The new composition of committees in the Parliament, giving Government control;
·        The super majority of the Government in the Parliament;
in my view there is a real chance of legislative risk that amendments may be passed that prevent singles and same sex couples from becoming intended parents. Those intended parents should consider undertaking surrogacy now, rather than later.
9.     Surrogacy practice under the Surrogacy Act 2010
9.1 Guiding principles
The Act has guiding principles in section 6: 
“ (1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
(2) Subject to subsection (1), this Act is to be administered according to the following principles–
(a) a child born as a result of a surrogacy arrangement should be cared for in a way that–
(i) ensures a safe, stable and nurturing family and home life; and
(ii) promotes openness and honesty about the child’s birth parentage; and
(iii) promotes the development of the child’s emotional, mental, physical and social wellbeing;
(b) the same status, protection and support should be available to a child born as a result of a surrogacy arrangement regardless of–
(i) how the child was conceived under the arrangement; or
(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii) the relationship status of the persons who become the child’s parents as a result of a transfer of parentage;
(c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of consenting adults in their private lives should be respected.”
Practitioners should be eternally grateful. The government did not accept the committee’s recommendation that there be a surrogacy review panel of similar nature to Victorian Assisted Reproductive treatment Authority (VARTA) or the Western Australian regulator. By not doing so, the Government not only lightened the burden of the taxpayer, but also sped up the process of surrogacy, and enabled it to be considerably cheaper for the parties.
9.2 Two steps: before/after
Like weight loss advertisements, the scheme under the Surrogacy Act has before and after elements from a legal perspective. I will deal below with surrogacy arrangements entered into on or after 1 June, 2010.
There are two key legal steps under the Surrogacy Act:
1.      Before: Entry into the surrogacy arrangement.
2.      After: Making of the parentage order.
Treatment can only commence once the surrogacy arrangement has been signed by all parties.  The requirements of a parentage order application are not mandatory for treatment.
a.       Requirements of an altruistic surrogacy arrangement
9.3.1 Not commercial surrogacy
Commercial surrogacy arrangements are prohibited.[14]
It is an offence to provide technical, professional or medical services for a commercial surrogacy arrangement to an intended surrogate before she has become pregnant.  Section 58 provides:
“(1)      A person must not intentionally provide a technical, professional or medical service to another person if –
(a)     the person knows the other person is, or intends to be, party to a commercial surrogacy arrangement; and
(b)     the person provides the service with the intention of assisting the other person to become pregnant for the purposes of the arrangement.  Maximum penalty – 100 penalty units or 3 years imprisonment.
(2)        A person does not commit an offence under ss.(1) if the person provides a technical, professional or medical service to a woman after she has become pregnant.”(emphasis added)
I have had reports from clients of doctors advising intending parents to try their hand at commercial surrogacy clinics overseas.  This behaviour, if true, would constitute an offence.  The Criminal Code[15]makes plain that every person who enables or aids another person to commit an offence, counsels or procures any other person to commit the offence also commits that offence.
It is also an offence for anyone to publish an advertisement, statement, notice or other material that they are agreeing to act as a birth mother or seeking a birth mother or willing to enter into a surrogacy arrangement.[16]
Although one would think that section 55 is intended to prevent advertisements, its reach is much wider.  The section provides in ss.2:
“Publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.”(emphasis added)
A surrogacy arrangement is a commercial arrangement if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person –
(a)   agreeing to enter into or entering into the surrogacy arrangement; or
(b)   permanent relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or
(c)   consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.[17]
Section 11 sets out the meaning of the birth mother’s surrogacy costs.  As clearly set out in section 10, this is the key difference between whether a surrogacy arrangement is commercial or altruistic.  Section 11 provides:
“(1) A birth mother’s surrogacy costs are the birth mother’s reasonable costs associated with any of the following matters–
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.
(2) Without limiting subsection (1), the following amounts are a birth mother’s surrogacy costs–
(a) a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1);
Example of a reasonable medical cost for paragraph (a)–
a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure
(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including–
(i) the cost of counselling obtained by the birth mother or the birth mother’s spouse (if any) before or after entering into the surrogacy arrangement; or
(ii) the cost relating to the preparation of a surrogacy guidance report under section 32;
(e) a reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;
(f) the value of the birth mother’s actual lost earnings because of leave taken–
(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or
(ii) for any other period during the pregnancy when the birth mother was unable to work on medical grounds;
(g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.
Examples of other reasonable costs for paragraph (g)–
travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth
travel and accommodation costs associated with a birth mother’s attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court
(3) In this section–
legal cost includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage.
medical cost means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.”
9.3.2 Nature of the arrangement
What is entered into concerns surrogacy.  There is no distinction in the legislation preferring gestational surrogacy over traditional surrogacy.  There is nothing within the Surrogacy Act that prohibits parties from entering into traditional surrogacy.  I have clients who are proceeding with a traditional surrogacy.  Doctors will not be engaged in that case until after the surrogate is pregnant. 
9.3.3 Independent legal advice
The surrogate, referred to in the Act as the birth mother, and her spouse (if any) must before they sign the surrogacy arrangement have had independent legal advice.[18]
The intended parent/s also need to have independent legal advice before the surrogacy arrangement is signed.[19]
9.3.4 Counselling or pre-signing counselling
The birth mother and her spouse (if any) and the intended parent/s must before they sign the surrogacy arrangement have had counselling from an ANZICA member, a member of the RANZ College of Psychiatrists, a member of the AASW or a member of the Australian Psychological Society.[20]
The surrogacy arrangement must be made before the child was conceived.  This provision is problematic when parties have frozen embryos that were obtained years ago and are now seeking to use them for the surrogacy.[21]  There is no definition of conception. The explanatory memorandum and the Attorney’s second reading speech do not assist.
The Lavarch Committee considered that the arrangement should be signed before the surrogate is pregnant, but did not otherwise specify when conception occurred.  Unfortunately there is no case law yet about conception and it is possible that a Children’s Court judge might find that conception occurred at the time of the fertilisation of the embryo. If so, then conception will have occurred before the surrogacy arrangement was signed, meaning that a parentage order cannot be made. There is no ability to dispense with this provision.
Counselling is not required for any donor, although a requirement of the clinics is that donors are counselled.
There is no difficulty with the same counsellor seeing all parties.  There is no difficulty with the counsellor being associated with the clinic.
The then Attorney-General, Cameron Dick, who was responsible for moving this Bill through Parliament was of the view that “conception” was at the time of implantation.[22]  Whether a court will hold the same view is a moot point. Although I have had a preliminary view expressed by Judge Everson DCJ on point, there has been no finding on this point to my knowledge.
9.3.5 Surrogacy arrangement needs to be written
The surrogacy arrangement needs to be signed by the birth mother, her spouse and the intended parent/s.[23]  It does not need to be signed by any donor.
9.3.6 Generally not legally binding
Generally an altruistic surrogacy arrangement is not legally binding, except as regards the birth mother’s costs.[24]
Despite not being legally binding, the surrogacy arrangement ought to clearly set out:
(a)   what the expectations of each of the parties are;
(b)   why they are entering into the surrogacy arrangement.  This point may be especially helpful in the parentage order application;
(c)   all parties were at least 25 years old when the surrogacy arrangement was made.
There is no requirement for parties to sign a surrogacy arrangement. The surrogacy arrangement is only required if the parties intend to seek a parentage order.[25]I have found that it is important to set out, for the protection of surrogates, an explicit statement that the surrogate has the right to manage the pregnancy as does any other woman. While the document is not binding, the message that the surrogate has control of her own body is a powerful one.
By comparison, in In the marriage of F and F (1989)[26], Lindenmayer J refused an application by a husband for an injunction to restrain the wife from having an abortion. His Honour found, in part, that the common law right to procreate did not extend to the husband having a right to force the wife to continue with the pregnancy contrary to her wishes. His Honour also found that under the Family Law Actthat there was a basis for an injunction under s.114(1), as it arose out of the marital relationship, but that in the circumstances of the case it was not “proper” to grant the injunction.
In the recent case of Talbot and Norman (2012)[27], Murphy J rejected the ability of a de facto husband to obtain an injunction to prevent an abortion, in part because of the statutory jurisdiction of the Family Court, and in part because of the foetus not having legal standing until it was born. His Honour left open the possibility of a similar injunction being obtained in the Supreme Court.
9.4 Let the treatment begin
Once there is a surrogacy arrangement signed by all parties, then treatment can commence.  It is not an offence to provide treatment before the surrogacy arrangement is signed, however the real risk is that the parties will not be able to obtain a parentage order and will blame the doctor and clinic for that (with professional indemnity issues) but worse, it may be that the arrangement was a commercial surrogacy arrangement which means the clinic, doctor and other staff may have committed a criminal offence.  Clinics are insistent, quite rightly, on having a copy of the surrogacy arrangement before treatment can commence.
9.5  Step 2: Obtaining the parentage order[28]
9.5.1 Key Steps
There are a number of key steps that need to be taken to obtain the parentage order.
  1. The child is born and handed over to the intended parent/s.[29]
  2. For post 1 June 2010 surrogacy arrangements, the application must be made within 28 days to 6 months of the child being handed into the possession of the intended parent/s.  There is the ability to extend the time, with leave of the court, but this ought to be avoided.[30]
  3. The order is for the wellbeing and the best interests of the child[31], this being the paramount consideration[32].
  4. The intended parent/s make the application together.[33]
  5. The birth mother and her spouse and any other birth parent all consent to the making of the parentage order.[34] The birth mother, until the time the order is made, remains the mother of the child, and therefore able to decide about the pregnancy, and whether or not she relinquishes the child.[35]
  6. The birth mother and her spouse were at least 25 years when the surrogacy arrangement was made.
  7. The intended parent/s were at least 25 years when the surrogacy arrangement was made and at the time of the application are resident in Queensland.[36]  What is significant about this clause is that there is no requirement for the birth mother or her spouse to be resident in Queensland.  Nor is there a requirement at the time of entering into the surrogacy arrangement that the intended parent/s reside in Queensland.  They only have to reside in Queensland at the time of the hearing of the parentage order application.
  8. A surrogacy guidance report has been obtained.[37]  This report needs to be obtained from an independent counsellor, ie someone not associated with the clinic and who did not provide any counselling before the surrogacy arrangement was signed.[38]
  9. There must be evidence of a medical or social need for the surrogacy arrangement.[39]  In essence, whilst there might be evidence of medical need for any male intended parent (including any gay couples) social need is sufficient.
  10. However, if a woman is an intended parent then there must be a medical need demonstrated for that woman.  If the intended parents are a lesbian couple, then the medical need needs to be shown for both.[40]  This will be shown to the court by a report from the treating doctor of the intended parent/s.  Evidently, treatment of the birth mother should not commence unless, in respect of any intended parent who is a woman, that there is a clear medical need.  If there is also a social need in respect of that woman, that is a bonus, but the requirement is for a medical need.[41]
Section 14(2) provides:
“(2) An eligible woman is a woman who–
(a) is unable to conceive; or
(b) if able to conceive–
(i) is likely to be unable, on medical grounds, either to carry a pregnancy or to give birth; or
(ii) either–
(A) is unlikely to survive a pregnancy or birth; or
(B) is likely to have her health significantly affected by a pregnancy or birth; or
(iii) is likely to conceive–
(A) a child affected by a genetic condition or disorder, the cause of which is attributable to the woman; or
(B) a child who is unlikely to survive a pregnancy or birth; or
(C) a child whose health is likely to be significantly affected by a pregnancy or birth.”
Treating doctors need to satisfy themselves that all women who are intended parents are eligible.
9.5.2 Documents required
The documents required to enable the parentage order application to be successful are:
  • a copy of the child’s birth certificate;
  • a copy of the surrogacy arrangement;
  • supporting affidavits by the intended parents, birth mother, her spouse and any other birth parent;
  • affidavits of each of the lawyers who gave advice before the surrogacy arrangement was signed;
  • affidavit of the pre-signing counsellor;
  • the surrogacy guidance report supported by an affidavit;
  • an affidavit from an appropriately qualified medical practitioner verifying a report prepared by the medical practitioner as to why the applicant is an eligible woman.
9.5.3 Parentage order
A parentage order is made by the Children’s Court.[42]It transfers custody and guardianship to the intended parents, and authorises changes to the birth certificate to reflect the change of legal parentage.
9.5.4 Dispensation
There are some requirements that can be dispensed with by the court if there are exceptional circumstances and that the dispensation “will be for the wellbeing, and in the best interests of the child”.[43]  There is also a dispensation if the birth mother or a spouse has died, loses capacity or cannot be located.[44]
9.5.5 Categories that can be dispensed with
.   The requirement of the baby living with the intended parents for at least 28 consecutive days before the application was made and was living with them when the application was made and with them at the time of the hearing.
Example: the baby may be in hospital, but in the care of the intended parents.
.   The intended parents have split up or one of them has died.[45]  The definition of couple in section 9(2) as spouses therefore means that if a married couple have separated, they remain a couple until divorce.
.   There is evidence of medical or social need for the surrogacy arrangement.
.   One or other of the parties had not obtained independent legal advice before signing the surrogacy arrangement.
.   One or all of the parties had not obtained pre-signing counselling.
.   The surrogacy arrangement is not in writing, or was not signed by all parties.
.   The birth mother and her spouse were under 25 when the surrogacy arrangement was made.
.   The intended parents were under 25 when the surrogacy arrangement was made.
.   The intended parents at the time of the hearing of the parentage order application are not resident in Queensland.
The Act sets out an example:
“Example of exceptional circumstances for dispensing with the requirement under section 22(2)(g)(ii) – one of the joint applicants is temporarily residing outside Queensland because of work commitments but is still in a spousal relationship with the other joint applicant who is resident in Queensland.”
.   One of the parties cannot consent to the parentage order application because they have died or cannot be located.
9.5.6 Case example
There has only been one reported case in Queensland: BLH & HN v SJW & MW [2010] QDC 439[46].
This was a surrogacy arrangement that was entered into between the parties when it was illegal, a child having been born on 11 May 2010, before the commencement of the Queensland Act.  The intended parents were a gay couple.  Judge Irwin made the parentage order.  He was satisfied that the proposed order was for the wellbeing and in the best interests of the child.  He gave as an example the child’s rights under succession law and in relation to financial support.  He noted that the surrogate believed that the child would suffer social disadvantage if his birth certificate did not record the intended parents as his parents, for example, when enrolling the child in school or other activities or when making decisions in relation to his health and welfare, which would ordinarily be made by a recognised legal guardian.
As to medical or social need, his Honour stated:
“It is a purely altruistic arrangement designed to allow the applicants the opportunity to have a family.  There is a medical or social need for the surrogacy arrangement as a result of the two intended parents being men.”
His Honour then went through the checklist of matters, satisfying himself.
10      NSW clients, but Qld doctors
Infertility doctors on the Gold Coast are licensed in Queensland.  There is nothing to prevent them from assisting intended parents who live interstate, for example in the Tweed.  However, at least one of our leading clinics will not treat where the intended parents live outside Queensland.
A surrogate could be an overseas citizen.  The surrogacy arrangement must, because doctors are providing treatment in Queensland, in my view as closely as possible comply with the provisions of the Surrogacy Act 2010 (Qld).  The scheme of the Act provides that intended parents must reside in Queensland.  If the intended parents reside in the Tweed, for example, they cannot apply for a parentage order in Queensland, but may be able to apply in their home State.
Any surrogacy arrangement therefore should comply with Queensland legislation and, so far as is possible, the interstate legislation.  Interstate legislation may prohibit surrogacy that is allowed in Queensland.  For example, a gay couple in Western Australia does not have an entitlement under the Surrogacy Act 2008 (WA) to obtain a parentage order.[47]
It is a quirk of our Federal system that if the intended parents live in the Tweed, but treatment were at the John Flynn Hospital, then the parentage order application would have to be made in Sydney in the Supreme Court of New South Wales, not on the Gold Coast in the Children’s Court at Southport.
If the child were born in New South Wales then the parentage order would take effect with the New South Wales Registry of Births, Deaths and Marriages.
If the child were born in Queensland, then the parentage order would be made in the Supreme Court in Sydney, then sent to the Registry of Births, Deaths and Marriages in Sydney where it might be transmitted to the Registry of Births, Deaths and Marriages in Brisbane, to be recorded on the Queensland birth certificate. The issue of children being born interstate is problematic, and symptomatic of the failure of the States to have complementary laws.
11              Discharging parentage orders
It is possible to discharge parentage orders. The grounds, as set out in section 46, are:
    (a) the parentage order was obtained by fraud, duress or other improper means; or
    (b) a consent required for the making of the parentage order was, in fact, not given or was given for payment, reward or other material benefit or advantage (other than the birth mother’s surrogacy costs); or
    (c) there is an exceptional reason why the parentage order should be discharged.
12.     Myths of surrogacy
Myth 1: a written surrogacy arrangement is required
It is a myth that a surrogacy arrangement is required.  It is not.  Residents of Queensland are perfectly entitled to enter into an oral surrogacy arrangement, provided that it is not commercial.  The purpose of a written surrogacy arrangement is two-fold:
  1. Without it, the doctor will not treat; and
  2. Without it, a parentage order will not be made.
A traditional surrogacy may not need medical intervention and therefore a written surrogacy arrangement is not required.  Obviously anyone entering into such an oral surrogacy arrangement would be extremely foolish.
Myth 2: a surrogacy arrangement must comply with the Act
This is incorrect.  The surrogacy arrangement has two purposes:
  1. To enable the doctor to treat (because without it the doctor may be open to a negligence claim or prosecution for facilitating a commercial surrogacy).
  2. To enable a parentage order to be made.
The doctor may be prepared to treat if the proposed surrogacy arrangement evidences that it is not a commercial one.  This is despite the fact that the surrogacy arrangement may provide for a surrogacy that will not permit the making of a parentage order.
Lawyers preparing a surrogacy arrangement that does not meet the parentage order requirements must warn their clients clearly, and out of abundance of caution do so in writing.
Case example: Bob and Jane are married.  They are unable to successfully carry a child.  Jane is desperate to have a child and persuades Bob to consider surrogacy.  Jane’s parents, John and Francine, propose that Francine be the surrogate.  All four parties have counselling and then sign a surrogacy arrangement.  Bob and Jane then separate because Bob no longer wants to go through with the surrogacy.
Jane still wants to have a child. Jane is aware that Francine’s biological clock is ticking. If Jane waits until she is able to be divorced from John, it may be too late: she may never have a child. They therefore decide to take the risk of trying to have a child but without having the benefit of a parentage order. Jane, John and Francine can no longer rely upon the surrogacy arrangement for treatment.
John, Jane and Francine enter into a new surrogacy arrangement. They are aware, at the time of entering into the new surrogacy arrangement, that the doctor will be prepared to treat but the parentage order cannot be made.  This is because, as Bob and Jane are married, they are a “couple” within the meaning of section 9(2) of the Surrogacy Act.  Jane is therefore ineligible to apply for a parentage order within the meaning of section 21(5).  This is not a requirement that can be dispensed with by a Children’s Court judge.
If Bob and Jane had been a de facto couple there would have been no difficulty in Jane applying to obtain a parentage order.
13.     Ongoing relationship between the surrogate and the child
It is the policy of the Surrogacy Act that the child knows as soon as possible where it came from. Fertility counsellors have suggested to me that the topic be broached in an age appropriate manner when the child is about 7 or 8. There needs to be given careful thought before entering into the surrogacy arrangement as to what involvement, if any, the surrogate and her partner have in the child’s life. It must be remembered that many altruistic surrogates are family members or close friends.
14.     Financial liability if the intended parents do not take the child
An obvious issue for all to consider is if the intended parents do not take the child for whatever reason, for example, the child is severely disabled, what then?  Invariably the surrogate and her partner are making decisions that in that event they would keep the child.  One option obviously is for the child to be placed up for adoption.
If the surrogate and her partner were to keep the child, they will not be eligible to obtain child support from the intended parents.  This is because under the Status of Children Act 1978(Qld) the birth mother will be the parent.  Her husband will be the other parent.  If she has a lesbian partner, her lesbian partner will be the other parent.[48]
There is, however, the basis to sue as to issue estoppel.  As with all legal monetary rights, they are only as good as the ability of the defendant to pay, an issue to be considered by the surrogate and her partner before proceeding with surrogacy.
In W v G (1996) [49]a lesbian couple separated.  At that time in New South Wales the lesbian co-mother was not recognised as a parent.  The parties set about having 2 children together, using IVF.  One of the parties was the mother of both children.
Following their break up, the woman who was not the mother of the children told the mother that she was not liable for child support (as she was not covered by the Child Support (Assessment) Act), and was not liable for child maintenance (as she was not covered by the Family Law Act), and therefore no payments needed to be made by her for the children.
Not surprisingly, the mother was not very happy about not getting child support and sought as part of her claim for property settlement under the New South Wales legislation a common law claim based on issue of estoppel for the cost of raising the children.  The mother was the plaintiff and the co-mother the defendant.  Hodgson J summarised the mother’s case:
“The Plaintiff’s claim for child support was put forward on the following basis. By virtue of these statements and the conduct by way of support the plaintiff and her participation in the actions leading to the impregnation of the Plaintiff and by her silence as to any contrary view, the defendant created or encouraged in the plaintiff a belief or assumption, or otherwise could be said to have promised to the plaintiff, that she, the defendant, would accept the role of parent to each of the children and would in so doing accept responsibility for the material and general welfare of both children, and would support the plaintiff in providing for the needs of both children and of the plaintiff as their mother. In reliance on that promise or assumption, the plaintiff acted to her detriment by going about the actions which led to her conceiving each child and carrying each child to term. The defendant knew or intended that the plaintiff would act in reliance on the assumption; and the plaintiff’s actions in so relying will occasion detriment if the assumption or expectation is not fulfilled , in that the plaintiff will be left to bear the cost of providing for the material welfare of both children until they reach adulthood, otherwise the plaintiff will suffer detriment in the form of income and opportunities forgone by virtue of her pregnancies, and also by virtues of the obligation she bears towards both children in terms of parenting in provision of care. The Defendant had failed to act to avoid that detriment, her action was unconscionable, and it was appropriate for the court to give effect to the resulting estoppel by ordering payment of an appropriate lump sum by the defendant to the plaintiff in respect of child support”.
Hodgson J sets out the circumstances in which the children were conceived[50]and therefore accepted[51]:-
“that, although the initiative came from the plaintiff, the defendant did by her words and actions conveyed to the plaintiff that the defendant would act with the plaintiff as a parent of the children and would assist and contribute to the raising of the children, so long as this was necessary.”
For the reasons that His Honour gave, His Honour ordered[52]that the defendant provide just over $150,000.00 towards the cost of raising the children.
15.     Options if a parentage order cannot be obtained
15.1 Adoption
If a party cannot obtain a parentage order, it may be next to impossible to obtain an adoption order.
The inherent jurisdiction of the Supreme Court was preserved under the Adoption of Children Act 1964[53], but there is no clearly stated preservation under the Adoption Act 2009.
Only those who are married or in heterosexual de facto relationships and who have lived together for 2 years need apply for adoption, and must not be an “intended parent under a surrogacy arrangement within the meaning of the Surrogacy Act 2010” or if the surrogacy arrangement has ended, that it ended not less than 6 months earlier[54].
15.2 Parenting order under the Family Law Act
The other alternative open to clients is to make an application under the Family Law Act, as in the manner of Re Mark: Application relating to parental responsibilities (2003)[55]in which a gay couple from Victoria underwent a commercial surrogacy arrangement in California.  One of the parties was the father.  Brown J made an order for joint parental responsibility for both men and for the child to live with them.
Given the recent difficulties with a series of cases in the Family Court last year, and an outstanding test case before Ryan J, it is wise to be wary about making any such application at the moment, if it can be avoided.
16.     Recognition under the Family Law Act
Section 60HB of the Family Law Act 1975 provides:
 “ (1)  If a court has made an order under a prescribed law of a State or Territory to the effect that:                  
 (a)  a child is the child of one or more persons; or 
 (b)  each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
             (2)  In this section:
“this Act” includes:
                     (a)  the standard Rules of Court; and
                     (b)  the related Federal Magistrates Rules.”
Regulation 12CAA of the Family Law Regulations 1984 prescribes s.22 of the Surrogacy Act as a prescribed law for the purposes of s.60HB.
17.     The Future
Recent legislative change, media attention and societal attitudes have now moved to such a point that Australians will increasingly view surrogacy as an option. The demand for surrogacy services has grown from a low base, and likely to increase. An aging population, few children available either within Australia or from overseas via adoption, and limits to the ability of IVF, together with the desire of gay couples to have children combine to guarantee a demand for surrogacy.
If the changes to enable de facto couples recognition as to property settlement under the Family Law Act are any guide, it will be many, many years before we have national laws concerning surrogacy where parentage applications are made to the Family and Federal Magistrates Courts. We are at the beginning of a very long road.
Stephen Page
Harrington Family Lawyers
23 May 2012
Phone: 61 7 3221 9544
Fax: 61 7 3221 9969
Australian Gay & Lesbian Law Blog
Australian Surrogacy and Adoption Blog


[1]Stephen Page is a partner of Harrington Family Lawyers, Brisbane.  Admitted in 1987, Stephen has been an accredited family law specialist since 1996.  Stephen is a member of the Fertility Society of Australia and of the ART Committee of the American Bar Association. He is the author of the Australian Divorce Blog, the Australian Gay & Lesbian Law Blog and the Australian Surrogacy & Adoption Blog  His Twitter avatar is: stephenpagelaw. Stephen has advised clients about surrogacy who hail from near and far.
[2]Then: Surrogate Parenthood Act 1988. Now:  Surrogacy Act 2010, ss. 54, 56.
[3]Kim Bergman, co-owner of growing Generations, reputed to be one of the oldest and largest in the world
[5]M. Condon, “Surrogacy Counselling”, paper delivered at Fertility Nurses Association training, Gold Coast (2011).
[7][2010] QDC 439.
[8]S.3 Surrogate Parenthood
[10]Births, Deaths and Marriages Registration Act 2003 Qld, s.10A
[13]Hansard 11/2/10, I was also present and witnessed the vote.
[14]Section 56.  This applies both in Queensland and to those ordinarily resident in Queensland engaging in commercial surrogacy arrangements overseas: s. 54. See also: s. 22(2)(e)(vi).
[15]Section 7.
[16]Section 55.
[17]Section 10.
[18]Section 22(2)(e)(i)(A).
[19]Section 22(2)(e)(i)(B).
[20]S.19, and Section 22(2)(e)(ii) Section 22(2)(e)(vi)??..
[21]Section 22(2)(e)(iv).
[22]Letter to the writer 16/11/10.
[23]Section 22(2)(e)(v).
[25]Cf see note to s.7.
[26](1989) 96 FLR 118; 13 Fam LR 189;  (1989) FLC 92-031
[27][2012] FamCA 96
[28]S. 22(2).
[29]S. 22(2)(b).
[31]S. 22(2)(a).
[33]S. 22(2)(c).
[34]S. 22(2)(h).
[35]Ss. 16, 17; Status of Children Act 1978 Qld
[36]S. 22(2)(g).
[37]S. 22(2)(i) section 32.
[38]S. 32, 19.
[39]Section 22(2)(d).
[40]S.. 14(1)(b)(iii), 14(2).
[41]S. 14.
[42]Section 13. It provides for the transfer of custody and guardianship from the birth mother (and her spouse if any) to the intending parent/s and alters the details on the birth registry so that the intending parents will be shown as the parents of the child.
[43]Section 23(2).
[44]Section 23(3).
[45]Section 21(5).
[48]Ss 17, 19D.
[49](1996) NSWSC 43,
[50]Paragraph 70
[51]Paragraph 71
[52]Paragraph 107
[53]Section 5B
[54]Section 76
[55][2003] FamCA 822
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