What is Altruistic Surrogacy?

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page talks about altruistic surrogacy and how it varies across different states of Australia.

Transcript

G’day. I’m. Stephen Page from Page Provan Family and Fertility Lawyers. I’m a dad through surrogacy. I’ve also advised in over 1750 surrogacy journeys for clients throughout Australia. And at last count, 32 countries overseas since 1988. Very, very long time and a very large number of clients. 

It’s been a real privilege to help those people become parents. But today I’m talking about altruistic surrogacy. There are words bandied about altruistic surrogacy, commercial surrogacy or compensated surrogacy. And in this video, I’m going to talk about altruistic surrogacy. This is the model that’s used in Australia and some other places around the world, for example, New Zealand and the United Kingdom.

What is altruistic surrogacy? Well, it goes from the principle that a woman doesn’t get paid. She doesn’t get paid a fee, but she might have her expenses paid. As one politician put it, there’s no payment of a fee. We don’t want her out of pocket, but we don’t want her to profit. So not out of pocket, but not to profit. 

That’s the theory, and that’s how it is supposed to work. But when one looks at what happens in practice because of laws, then things get a bit skew with. But when one looks at what is the principle of altruistic surrogacy, that’s the clear theory. Australians often go to Canada for surrogacy, and Canada is an altruistic surrogacy regime.

What we see happen in Canada is that there are surrogacy agencies and surrogates who are available. When we look at contracts for surrogates in Canada, surrogates get paid somewhere between 20,000 Canadian dollars. So that’s roughly equivalent to Australian dollars and up to over 30,000 Canadian dollars. And this is reimbursement for expenses. These numbers look remarkably at times as though they might be commercial. But Canadian law is quite clear that it’s not commercial. It must be altruistic. So when you see it happen in Australia, we go, okay, well, how much might a surrogate be compensated for her expenses? The answer is that it depends on local law, and it also depends on how much she’s actually incurred. 

Some years ago, I had a case in the family court and I said to the family court judge that this surrogacy arrangement, which was American surrogacy arrangement, was commercial under both Queensland and New South Wales law. The judge told me that it was not commercial, that it was altruistic as defined under both laws. 

The fact is that what is altruistic and what is commercial is seen in the eyes of the beholder and as defined by legislation. And I want to give you a couple of simple examples. 

In Queensland, the costs of the birth mother can be reimbursed if they are reasonable and they relate to getting pregnant or trying to get pregnant or the pregnancy and childbirth or the legal process of surrogacy provided it’s reasonable. And reasonable is an objective test. So it’s in the eyes of a judge, but provided it’s reasonable, then you can pay for anything associated with that the legislation sets out examples, and they do with time off work, health insurance, for example. But these are all just examples. 

And some years ago I had a case where we had a prospective surrogate from Queensland and the intended parents came from New South Wales, and the New South Wales Surrogacy Act is very similar to the Queensland Surrogacy Act, including about these expenses. There was a major problem. The first problem was that the lawyer for the intended parents did not want this to go through because my client wanted to be paid, wanted to be reimbursed, I should say, for massages.

And I was told bluntly by the other lawyer that to pay for my client’s massages made this surrogacy arrangement commercial surrogacy. I had to explain to the other lawyer that in fact, the Surrogacy Acts of Queensland and New South Wales did not limit what could be paid, provided it was reasonable and many women who were pregnant had massages. It would be different if we sent her off to an expensive spa on the Gold Coast repeatedly, for example. That might be seen as being commercial, but just to have messages during pregnancy I didn’t see as being commercial. I thought the objection was silly, and it denied her autonomy as a woman being pregnant, being able to manage her own pregnancy. I thought it was unreasonable. 

The second thing that was put to me was the same about acupuncture. And again, I rejected that argument. I just said it was ridiculous. Having acupuncture was an entirely normal thing that many pregnant women do. Why should my client be denied that? 

And then the third thing that was put was, well, the legislation said that your client is entitled to take up to two months leave for pregnancy. Unless there’s some medical advice, it could be longer and that’s it. And she can be paid for that leave. I said, look, there’s a problem. That is an example. It is not prescriptive. My client’s self-employed, and she was self-employed in a business where she was a dog walker. So my client was going around on inline skates being pulled by six dogs at a time.

She wanted to employ a locum. And the other solicitor said, well, a locum isn’t within that description at all. It’s turned it into commercial surrogacy. And I said, this is ridiculous. What have we got here? We have a surrogate who wants to run her business. She doesn’t want to lose money. She’ll have to close her business. And I am not going to have my client, who is heavily pregnant, being pulled around on the Hills of Dales of Brisbane by a bunch of dogs when she’s on roller skates. Now, the lawyer backed off.

They entered into the surrogacy arrangement with reference to acupuncture and massage and having a locum. And guess what? Everything worked. At the end of the day, a parentage order was made by the New South Wales Supreme Court without any problem at all. The judge there obviously had no concerns about it.

So altruistic surrogacy varies across the country as to what is and isn’t altruistic surrogacy. And I’ll give you another example.

Each state has different rules and while you may think that in Australia it’s pretty well the same across the country in this area, it’s not. While you might hear politicians that say, well, every state allows for altruistic surrogacy, that’s true. And that in every state it’s roughly the same rules. No, it’s not. If you have a surrogate in Western Australia and you have intended parents, say, in New South Wales with medical treatment to occur in new South Wales, what are you wanting to do? You want to fly your surrogate from Western Australia to Sydney, for example, for treatment. Guess what? That’s lawful under the new South Wales law but not lawful under the WA law.

So extreme care has to be taken to avoid any criminal act occurring. WA, which takes up about a third of the Australian landmass, doesn’t allow for travel, it doesn’t allow for massages, it doesn’t allow for acupuncture and it doesn’t allow for locums to be employed. These are just a small number of examples that I’ll give a review taken out about WA law says, well, the provisions of WA law about what surrogates are allowed about the same as Queensland, New South Wales. No, they’re not. I for one am not going to have someone commit a criminal offence when they engage in surrogacy, extreme care must be taken to make sure that you don’t accidentally breach these laws but I’ll just give you that example because the differences can be stark. Thank you.