What is Gestational Surrogacy?

What is Gestational Surrogacy?

In this video, Accredited Family Law Specialist and Page Provan Director Stephen Page discusses gestational surrogacy and how it differs from traditional surrogacy.


G’day. I’m. Stephen Page from Page Provan. And I want to talk to you today about traditional surrogacy as against gestational surrogacy. In other words, who is a traditional surrogate and who is a gestational surrogate?

I’m a dad through surrogacy. Since 1998, I’ve advised in over 1750 surrogacy journeys for clients in every part of Australia and at last count, 32 countries overseas. 

So what is a gestational surrogate? There is so much jargon in this place that it’s hard at times to feel overwhelmed by the jargon. But in essence, a gestational surrogate is a woman who has a baby for someone else who has no genetic relationship with the child.

She gestates the child. In other words, she carries the child. Sometimes you’ll see in American documents in particular that she’ll be called a gestational carrier because that, in effect, reflects her role. She is carrying the child for someone else and by doing so, she is pregnant and gives birth. That’s it.

She is not the mother in the sense of being the genetic mother. A traditional surrogate is different. A traditional surrogate is someone who is not only gestating the child, but is also genetically linked to the child. She is the genetic mother of the child. So there are quite crucial differences between the two.

Research from the UK has suggested that there’s little risk difference between gestational surrogates and traditional surrogates. Both took the view that they aren’t the parents, that the intended parents are the parents. However, what we have seen in Australia have been cases where gestational surrogates are seen as less risky than traditional surrogates. 

Traditional surrogates are seen as more risky because, of course, after the child is born, they may form an attachment to the child and therefore decide to keep the child. 

About 20 years ago, there was a case in Australia called Re Evelyn, and that case involved two couples, husband and wife, living in Queensland and the judge called them Mr and Mrs Q and a husband and wife living in South Australia, and the judge called them Mr and Mrs X. Sorry, I should say Mr and Mrs S. However, in fairness to Mr and Mrs S, the judge probably should have called them Doctor and Mrs S because the husband was a doctor. 

It’s unclear from the judgment, but it appears that he was a GP and he used his skills to enable his wife to get pregnant with Mr Q’s sperm. This was in the days when surrogacy was banned in both Queensland and South Australia.

These couples did not have the benefit of legal advice before they jumped into the deal. They were long-time friends. They also did not have the benefit of having any specialist counselling before they jumped into the deal. Now, that’s quite different to what we see now. What we see now is that if you want to proceed with the surrogacy journey in Australia, you should go through the formal processes which require you to have independent legal advice for both sides, the intended parents and the surrogate and a partner and counselling before you enter into the deal. Each state has different rules about that, but that’s the essence of it. 

What happened? Well, Mrs S got pregnant. Everything worked with that, and they were overjoyed.

And then the child was born, and Mrs S immediately gave the child to Mr And Mrs Q. So the child was living in Queensland. And then three weeks after the child was born, Mrs S came up to see the child. This is not an unusual feature as one fertility counsellor, the doyen of fertility counsellors dealing with surrogacy in Australia, Miranda Montrone has described, namely, a hug attack. Up here is saying, I’m not mum, but physiologically is saying, well, you’ve gone through a pregnancy, you’ve had all the after-effects of pregnancy. You want to make sure the child is okay. And, of course, the issue with the traditional surrogate is high risk because you may, in fact, think that you’re a mum, particularly if you haven’t had any legal advice or any counselling advice.

So what happened? She came and saw the child and took the child. The matter went to court. It ended up in the family court. It then went on appeal in the family court. The judge found that the child should live with Mr And Mrs S, Mrs S being the mother. And then it went on appeal.

Mr And Mrs S were successful in the appeal. Mr And Mrs Q then sought special leave to appeal to the high court and were knocked back. 

So what we’ve seen in Australia is that there is a restriction on traditional surrogacy, and this isn’t everywhere. The ACT and Victoria are the places where there is that restriction on traditional surrogacy. There cannot be a genetic relationship. And from my recollection, also Western Australia. Western Australia has its own particular prescribed rules about surrogacy, just like everywhere else. But if you’re living in Queensland or New South Wales, for example, there aren’t any restrictions on traditional surrogacy. You can proceed with traditional surrogacy through an IVF clinic. To clarify, with Victoria, you can proceed with traditional surrogacy in Victoria, but you can’t do it through an IVF clinic.

They’re not allowed to do it. And the reason, presumably, is because of this view of risk.

Because IVF clinics are allowed in Queensland and New South Wales to undertake traditional surrogacy, do they do so? If you look back ten years ago when the current surrogacy laws came in, the answer was a resounding no, they just didn’t. And the reason was because they saw that the risk was too high. What’s happened over the last ten years, however, is that their position has evolved.

Most IVF clinics these days who deal with surrogacy and not all IVF clinics deal with surrogacy, but those who do will handle traditional surrogacy cases, but deal with it on a case by case basis. There needs to be assurance that the surrogacy arrangement, of course, is legal in that sense, that it’s not commercial surrogacy. So there’s always this risk feared by doctors, that the woman is being paid for her baby. So we want to make sure there’s none of that. And secondly, that there’s no risk that she’ll want to hang on to the child, that she is fully committed to this process.

That risk can’t be got rid of entirely because the surrogate must consent to the transfer of parentage when the parentage order is made. And if she doesn’t consent, then the order can’t be made. Tasmania is an exception to that. But in the two big states, Queensland and New South Wales, there is a definite requirement for consent. So provided that you can get past those two hurdles, that the clinic is okay, that the surrogate is on board, then you should be able to do it.

Traditional surrogacy is an option, but it needs to be dealt with very, very carefully. Preparation is essential. Prevention is better than cure. An example that I had many years ago was acting for a potential surrogate. She came to me because her sister had cancer, and my client and her husband offered to help, and my client wanted to be the surrogate for her sister.

Anyway, this all sounded a wonderful idea. Very low risk between sisters, evidently extremely low risk. And I asked the obvious question, what happens if your sister’s eggs aren’t viable? What then? Well, I was told the clinic concerned won’t handle traditional surrogacy.

So what they are insistent upon is that there is an egg donor for my sister. And then I would carry and I think I said something like, that’s nuts. You’d have to say that the surrogacy arrangement between the proposed surrogacy arrangement between you and your sister is very, very low key. And I would have thought that the idea would be that there would be a genetic relationship on both sides of the family for this child, namely husband’s sperm and your egg if your sister’s egg isn’t viable. And that’s where the conversation ended, because, of course, that wasn’t the aim of the exercise.

The aim was the intended mother’s eggs to be used, and we planned on that basis. And then we discovered that, unfortunately, the intended mother’s eggs weren’t viable. So my clients came back to me and said, can we do it as traditional surrogacy? The clinic at that stage refused to handle traditional surrogacy. I pointed out to the clinic that their sister clinic in another state did so and that this was considered a very, very low-risk case.

The clinic then proceeded with traditional surrogacy, and it was a very happy arrangement. The child, of course, went to live with the intended parents, who were then recognized as the parents when a parentage order was made. That clinic these days will not handle traditional surrogacy. So you’ve got to be careful about where you go. Most do, some don’t, and the reason is because they look at risk.

The risk is relatively low, but nevertheless, it exists. And care must be taken. As I said, prevention is better than cure. 

Get your legal advice right at the beginning. 

Look at the choice of clinic right at the beginning.

Minimize risk right at the beginning. 

Thank you.

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Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board