Why I am a surrogacy lawyer
When I was at law school back in the 80’s I studied family law. I never thought I would practice in that area: after all it was – sniff- about people, and not about property, the traditional preserve of our common law. I was much more interested in trusts of all kinds- resulting, implied, express and constructive, and not in ephemeral concepts of justice- derided at law school by some as “palm tree justice”.
When I got out into practice, I discovered very quickly that I was bored rigid about much of commercial law, and ironically liked the challenges of family law- because I was helping people. I saw that what I did could change people’s lives. I could help adults and children become safer, or have a roof over their heads.
And then in 1988 came one of those clients who simply takes your breath away. I was in my office in suburban Brisbane when a client came through the door who made me gasp. She told me that she had been paid $10,000 by a couple to have their baby. She wanted to know if she could keep the money and the baby- as she had decided that she liked the child and wanted to keep it. No IVF clinic was involved. This was what we now call traditional surrogacy. The client was not only the surrogate but the genetic mother of the child. The child was genetically half hers.
My advice was clear, although I was appalled by her actions, and in particular the impact on the childless couple, whose dream she had hijacked: she could keep the baby and the money. She could keep the money because Queensland’s newly passed Surrogate Parenthood Act 1988 made what they had done illegal. This meant that any contract was void- and the money as lawyers say fell where it lay. In other words, she had been paid the money and could keep it.
And the child? She could keep the child too (from recollection a boy) because if they were to challenge her in court for custody (when we did call it custody), the intended parents may or may not succeed, but were at risk (as was she, but she was not the one wanting to start a case) of being prosecuted and then thrown in jail.
A few years later in 1992 I acted for my first LGBTI client, a woman who came out of the closet of her marriage. Since then I have acted for many gay and lesbian clients, some bisexual clients and the occasional trans client.
It might seem obvious- but gay and lesbian people cannot ordinarily conceive children. This means that for these clients how to conceive a child is not simply a romp in the back of a Commodore on a Saturday night, but an at times carefully planned exercise walking through the labyrinth of laws that were and are struggling to keep up with the changes of society.
Step by step from that process I started to advise clients about surrogacy, which in most parts of Australia back then was illegal. Step by step from that, I have acted for clients about surrogacy and related fertility questions.
Although many of my surrogacy clients are gay (men after all do not have a uterus), most are married couples. I have also acted for lesbian couples, and single men and women who want to be parents (and surrogates and their partners, donors and others too).
Even though I am not one of the central players- as after all I am merely a lawyer on the sidelines, not one of the intended parents, nor the surrogate or her partner nor the donors- in my key role I get a great deal of satisfaction of removing people’s pain in the inability to have children, by helping them walk through the labyrinth to have children.
To see that pain lifted and turned into love and joy after a baby is born is extraordinary. I am very lucky to help out in this most intimate of moments.
Many years ago when I was looking to have children I had the misfortune of not being able to have kids straight away. I had always thought I was going to be a dad. I loved my dad to bits and I wanted to have children, just like he had had children. It was just a question of when. And yet when it came to trying, it just didn’t work. It became a question of if. If you can have children can be a truly scary prospect. It is on another planet from when you can become a parent. Parallel universes. Suddenly all the certainties went. Fear can take over. The fear of failure. The fear of not becoming a parent.
And it’s one thing for there to be something wrong with your partner’s body- that’s sad, but empathy is there- but when it is your body, suddenly it feels as though you are imperfect- how come God picked on me? What have I done wrong, and all those irrational thoughts.
And then we got lucky- and breathed a huge sigh of relief. Once kids come along they change your life forever. I have been lucky enough to be a dad. I haven’t been on the journeys of my clients. Each journey is different- but I have experienced that pain, the uncertainty of ever becoming a parent. It’s not nice.
So there it is- I like helping real people achieve the most amazing miracle known on the planet- the miracle of the birth of a human baby. How lucky am I?
