Identifying the right surrogate mother for you

Surrogacy is intimate

Not being a child born through surrogacy, I obviously can’t speak from first hand knowledge – but being a child born of my own mother, I know the relationship that I have with my mum and the knowledge of having been born of her womb is as close as can ever exist regardless of whether it’s through nature or nurture. While I may have other important and intimate relationships throughout my life (with my parents and extended family, as well as with wife and my own children) there’s nothing that can replace the fact that I was conceived in and born from my mum.

For any child born through surrogacy, even though they don’t know it or acknowledge it, there’s a bond that will always remain, even if it’s not realised or forgotten over time – but they can’t change the fact that they were born from their surrogate mother. In the same way, adopted children no matter who they are cannot ignore the fact that they have a biological mother (and father) even if their relationship with their mum, or adoptive parents, have since replaced that at a personal level or by choice, they wish to have nothing to do with their biological parents.

I expect there will be varying opinions on this, but for me, I think the relationship between a surrogate mother and the child born through surrogacy is important, even if that connection only lasts for the relatively brief period of gestation. Those formative months can in many ways influence how that child grows throughout the rest of its life. It almost goes without saying, but what happens if the surrogate mother is a smoker, drug addict or has some other lifestyle which is widely accepted as not being beneficial to the pregnancy? The child has no choice in the matter, it’s largely the lifestyle choices of the surrogate mother – and ultimately, the decision of intended parents as to who they wish to carry and give birth to their child.

It’s all about trust

So is finding the right surrogate mother an important decision? Yes, it is – and since it is, how do you go about making that decision? Well, in many cases, intended parents who have consulted us in the past generally have approached family members or very close friends. Naturally, they’re people they know and trust to care for their unborn child throughout the pregnancy. At the end of the day, that trust is probably the most important factor in choosing the right surrogate mother.

If you’ve been reading through the articles in this website, one thing you’ll notice is our comments about the surrogacy arrangement. Despite introducing the Surrogacy Act and the developments in the law and related legislation, surrogacy arrangements remain legally unenforceable – rather it’s role is only as evidence that a surrogacy arrangement existed for the purposes of the parentage order. The surrogacy arrangement doesn’t give rise to rights or obligations, in contract or otherwise, between intended parents and the surrogate mother (or parents) in relation to the child or each other. So you can’t use it to determine how your surrogate mother will behave during the pregnancy (or even that they will willingly consent to the parentage order after the child is born), and you can’t use it to enforce what you believe are your rights or the promises made when you entered into the surrogacy arrangement. Of course whether this will change, maybe only time will tell. Perhaps if there’s public outcry about an increasing number of ‘broken’ surrogacy arrangements, politicians will be forced to revisit the current regime. But until then, it’s all about trust.

So who do you trust? Who do you trust to be able to not just carry your baby to term and give birth to you baby, but who will do all they can to look after your unborn baby during the pregnancy? Also consider no matter how much you might trust them, will they do what you think they should be doing throughout the pregnancy? I can say that even closest relatives (even between parents), regardless of trust, may have very different perspectives when it comes to the pregnancy even though everyone shares the same ‘best interests’ intention. The danger of it being very subjective and a very personal decision makes it that much more socially complicated – so navigate with care.

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My Personal Invitation

Choosing to have a child through surrogacy or agreeing to be a surrogate mother is an important life choice that shouldn't be taken lightly. As the father of two boys, I personally know the joys (and challenges) of being a parent. I also understand why you're going through what you're going through to become a parent yourself. That's the human condition.

By the time you're reading this article, you've probably spent a small fortune on medical expenses and taken a ride on an emotional roller coaster which I'm sure has had a physical and psychological toll on you and your family. But if you're here, then you've come to the right place and you're heading in the right direction.

My team of lawyers and I have been helping intended parents and surrogate mothers (and their partners) understand their rights and obligations arising from surrogacy, as well as the legal process necessary to ensure a successful outcome, even before the Surrogacy Act was introduced. During this time, we've noticed that there's a general lack of reliable information regarding surrogacy in the public space (including the internet) and that's why we're proud to have developed this website. We developed this website to help you in your research, to understand your legal rights and obligations, and to guide you each step of the way in terms of the legal and social issues that you'll face.

Allow us to have privilege of advising you and representing you throughout the surrogacy process and share the joy of your new family.

Ern Phang

Ern Phang
Director

This website is maintained by Phang Legal, a boutique legal practice in Parramatta that provides legal advice and representation in surrogacy and family law related matters for intended parents and surrogate/birth parents across New South Wales.

Ern Phang is the solicitor director of Phang Legal. Ern regularly writes about his experiences in helping clients with understanding their legal rights and obligations in surrogacy matters.

All information contained in this article is for general purposes only and correct as at the time of publication. You should only rely on information and advice that is specific to your situation and current at the time you wish to rely on it.