In our endeavour to provide guidance, advice and representation to couples considering or currently going through surrogacy, we’ve come to realise that we’re often asked for our opinion on the same issues time and time again. When many of those issues can be handled relatively simple, we’ve created a ‘frequently asked question’ – which you should be able to find from the menu bar. Frequently asked questions (or FAQs) are a great way for you to find out information and for us to communicate that information, however when the issues are a little more complex requiring further input or opinion, we’ve not been able to offer any other options – not until now.
We’ve started a new page focused on developing a Surrogacy Forum to help the many people who come to us for assistance to share some of their experiences and opinions. This project is still in its infancy but we’re hopefully that many of you will find it interesting and hopefully helpful too. We’ll be moderating the forums to ensure that the topics are relevant and that the responses are appropriate.
If you have a question, chances are other people will be asking the same or similar question and would be interested in discussing the answer or sharing an experience. The forums will provide that opportunity – but it requires your input. Ask the question or raise and issue.
What next?
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.
ErnPhang 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.
As a couple looking at having a child through surrogacy, after you have identified your surrogate, the next step is to enter into a surrogacy arrangement.
Importantly, you must enter into this arrangement BEFORE your surrogate becomes pregnant (ie, a pre-conception surrogacy arrangement). A pre-conception surrogacy arrangement is necessary if you eventually want to successfully apply for a parentage order, declaring that the child is legally recognised as your child.
In basic terms (see below for the legislative references), a surrogacy arrangement must be in writing and address the basic agreement to become pregnant and when born, the child’s parentage would be transferred. However, at this point, many people find themselves a little lost simply because the Surrogacy Act does not provide direction as to how and what they are supposed to do in terms of writing the surrogacy arrangement.
Fortunately, this is where we can assist. Our experienced family law lawyers have assisted many couples with preparing and reviewing written surrogacy arrangements. You can either choose from our standard precedent surrogacy arrangements, but if they are not relevant or suitable to what you and your surrogate or her partner have agreed, we can easily customise the surrogacy arrangement to meet your specific requirements and reflect your situation.
What does the Surrogacy Act say about surrogacy arrangements?
Section 5(1)(a) states:
“An arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a “pre-conception surrogacy arrangement”)”
Section 6 states:
“(1) A surrogacy arrangement is not enforceable.
(2) However, an obligation under a surrogacy arrangement to pay or reimburse the birth mother’s surrogacy costs is enforceable, but only if the surrogacy arrangement is a pre-conception surrogacy arrangement.”
Section 23(1) states:
“The surrogacy arrangement must not be a commercial surrogacy arrangement.”
Section 24(1) states:
“The surrogacy arrangement must be a pre-conception surrogacy arrangement.”
Section 34(1) states:
“The surrogacy arrangement must be in the form of an agreement in writing, signed by the birth mother, the birth mother’s partner (if any) and the applicant or applicants.”
Section 36 states:
“Each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement.
The legal advice obtained by the birth mother and the birth mother’s partner (if any) must have been obtained from an Australian legal practitioner who is independent of the Australian legal practitioner who provided legal advice about the surrogacy arrangement to the applicant or applicants.”
What does the Surrogacy Act not say about surrogacy arrangements?
The Surrogacy Act does not say:
Who or how to write a surrogacy arrangement.
The contents, form or format of a written surrogacy arrangement, aside from the agreement to be pregnant and the parentage of the child.
What should you do about surrogacy arrangements?
In the absence of clear direction from the Surrogacy Act as to how you should write a surrogacy arrangement and what that surrogacy arrangement should contain, it is important to obtain specific legal advice from an appropriately qualified legal professional.
If you have an existing or proposed surrogacy arrangement and you need us to review it to ensure that it complies with the Surrogacy Act (and/or for independent legal advice as required by the parentage order), please contact us by uploading a copy using the form below.
What next?
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.
ErnPhang 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.
What’s happened to international surrogacy over the last 6-12 months? There’s been on-again off-again media attention on international surrogacy, especially involving Australians in India and Thailand and an outcry by various interest groups locally on the number of couples heading overseas to conceive. But what does it all mean for intended and hopefully parents in Australia?
The NSW Attorney General is currently reviewing the Surrogacy Act in New South Wales and submissions have already closed. It’s unlikely that there will be any immediate change to the prohibition of ‘commercial surrogacy’, but despite this being part of the current legislation, it apparently hasn’t stopped many people from successfully conceiving children through surrogacy in other countries.
However, with all the uncertainty surrounding what’s going to happen with surrogacy, especially with the media attention often fixed firmly on the issues of international surrogacy, is it worth it?
In a quick review of clients who seek our assistance with advice or guidance around international surrogacy, the main driving force is cost and availability of a suitable surrogate. Many of them have been through various IVF and ART procedures in Australia, spending a small fortune on medical procedures, but without success. Many of them – perhaps due to the length of the procedures or other life choices – are no longer suitable candidates for IVF/ART or surrogacy according to the guidelines of clinics in Australia. Whatever the case may be, they find their solution in less regulated countries where it’s possible for them to undergo the necessary medical procedures for a fraction of the cost – and perhaps where it’s possible to find a suitable candidate to be a surrogate (irrespective of whether that’s officially considered to be a commercial or altruistic surrogacy or not).
The countries where there’s been a bit of a spotlight in recent times, namely India and Thailand, have been attractive destinations for couples seeking an alternative to the restricted and regulated surrogacy process in NSW, or other states in Australia. However, even countries like India and Thailand have undergone substantial legal reform when it comes to surrogacy, and the potential for their nationals becoming paid surrogates for overseas intended parents – including those from Australia.
To understand the social and legal developments in those countries and before financially committing yourself, I encourage you to do your research extensively before incurring the cost of travelling only to find that the hope or the options you were looking for are no longer possible or viable.
What next?
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.
ErnPhang 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.
Does the media attention on international surrogacy change things?
You haven’t heard from me for a while, and there’s a good reason for that.
Over the last month or two, we’ve been inundated with calls (especially from journalists) looking for commentary and opinions on the legality of international surrogacy. Coincidentally, the last article that I wrote addressed the issue of international surrogacy out of India. Naturally, that article and this website attracted attention from anyone wanting to know more about the legal issues surrounding ‘Baby Gammy’ from Thailand and international surrogacy (especially commercial surrogacy) in general.
If you don’t know what that case is/was about, you’ll find enough information on the internet – so I won’t repeat it here. Suffice to say, while those issues are still ongoing for the parties involved, the government, and interest grounds – it appears the media hype has largely subsided and ‘life is back to normal’.
At that the time, I was approached for comments for news, radio and television segments. But I declined all requests – and I haven’t written further posts, not until now.
The prospect of being on television or radio always sounds exciting, but it was difficult to see how that exercise would benefit my clients – without drawing unnecessary attention to their individual challenges. The highly political and emotionally charged topic of surrogacy can be controversial. There’s always going to be opposing views across the community, and I don’t think it’s necessarily a public debate that we should be involved in.
My team and I are solely dedicated to our clients regardless of whether they need legal advice and representation for altruistic surrogacy in New South Wales, or are considering embarking on possibly international surrogacy. We don’t judge. We just advise.
We also don’t promote ourselves as having any more ‘expertise’ in surrogacy matters than our professional colleagues nor do we have any specific authority or right to tell others what they can or can’t do – certainly not that conceited or arrogant. Instead, I really see our role as being solely to help our clients – and that’s it.
Our professional advice is based on knowledge and experience. We offer that advice to our clients so that they can achieve their goals and intended outcomes – which is namely to have a child through surrogacy. We also help our clients navigate the minefield of social and legal issues and reform, much of which is likely to play a bigger part now given the increased public awareness surrounding international commercial surrogacy.
Truth be told, the issues regarding international commercial surrogacy are nothing new. The recent media attention only brought these issues to the forefront of people’s minds and into the public debate. Otherwise, for Australians, travelling overseas for surrogacy (and a range of other medical procedures) has always been an attractive alternative, especially due to the lower relative cost in those countries and if they had no potential surrogate in Australia.
As I have told the journalists, this office receives a large number of enquiries from intended parents and surrogate mothers because that’s the area in which we work. A large percentage of those enquiries also deal with the issue of international surrogacy, and sometimes those enquiries include questions around international commercial surrogacy (part of which I’ve already written about in previous articles).
So what does all of this mean? It obviously means there’s a demand for international surrogacy and there’s a potential demand for international commercial surrogacy. I would probably venture to say that ever since it’s been possible (medically/technologically) it’s been happening, especially in developing countries where there’s the increased likelihood of exploitation of women – which is the whole reason for criminalising commercial surrogacy in New South Wales in the first place.
Also, I’m sure that within all the cases of international surrogacy arrangements (commercial and altruistic) there have been cases similar to ‘Baby Gammy’, where there has been a dispute or disagreement between the intended parents and the surrogate or birth mother (or her family). I presume most of those cases have been resolved in some way or another without attracting widespread attention.
The case of ‘Baby Gammy’ has been a little unusual probably because of the surrogate mother’s ability and willingness to draw the attention of the national and international media. But I might address this further in another article on another day.
What next?
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.
ErnPhang 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.
Over the last couple of months, I’ve noticed an increasing number of clients ask us for advice in relation to ‘gestational surrogacy agreements’ from various fertility clinics in India.
After doing my own research, I’ve found that many of these clinics market themselves all over the world to people looking for a surrogate and assistance with artificial reproductive technology aspect of surrogacy. In my view, the service offering is generally quite attractive.
Not only do these clinics offer a ‘match-making’ service for intended parents looking for a surrogate, but they also provide ongoing care for the surrogate mother during pregnancy, medical assistance during child birth, and administrative services to have the child legally recognised as the child of the intended parents and consular/immigration assistance for the child to return with the intended parents to their home country. You could say that it’s a one-stop-shop for all your surrogacy needs. That does sound attractive doesn’t it?
The ongoing care aspect for the surrogate mother during pregnancy was especially interesting. Most facilities appeared to be setup like a 5-star hotel/hospital where surrogate mothers were under constant care (surveillance) while their diet, their lifestyle and their activities were controlled and continuously monitored – for the peace of mind and confidence of intended parents, as well as for the care and welfare of the surrogate mother and unborn child.
Considering the surrogate mother
Of course, it’s always possible to make various assumptions as to where and how the clinics identify suitable surrogate mother candidates, what surrogate mothers are offered in return for their services (and submission), and what surrogate mothers experience in terms of the conditions and treatment throughout the surrogacy process. From the feedback that I’ve received from clients (all of whom are intended parents) who have visited the clinics in India to meet with their doctors and surrogate mothers, the facilities are superb and the surrogate mothers are totally pampered and live in (relative) luxury.
At this stage, I’m sure the human rights activist inside you is beginning to ask other questions. Questions like, are surrogate mothers chosen from the poorest and most disadvantaged communities? Do surrogate mothers like being under 24/7 surveillance and do they have any privacy? Would they prefer to eat or do things which they’re not permitted to by the clinic? Can they leave the clinic any time they want?
I’m not saying whether it’s right or wrong (legal or illegal), or whether the surrogate mothers voluntarily or willingly sign up or contract themselves to the clinic, beyond whatever surrogacy arrangement or agreement exists between the intended parents and surrogate mother. They’re just open questions in my mind that I don’t have answers for right now. However, I’m sure if you’re considering surrogacy in India and these issues are important to you, then you should ask the clinics or do your own research to satisfy yourself.
Commercial or altruistic surrogacy
Also, while I didn’t investigate or research further into the financial arrangements between the surrogate mothers, clinics or the intended parents, I was assured by representatives from the various clinics that they only promoted altruistic surrogacy – not commercial surrogacy. Apparently, the fees and expenses paid by the intended parents was to the clinics for the services that they provided throughout the surrogacy process (part of which naturally is also applied to the surrogate mother’s expenses).
Without making any suggestions regarding the various arrangements offered by different clinics in India, probably the most important advice that I can offer at this stage is to just highlight the prohibition of commercial surrogacy under the Surrogacy Act.
Section 8 of the Surrogacy Act 2010 provides that:
“A person must not enter into, or offer to enter into, a commercial surrogacy arrangement. (Maximum penalty: 2,500 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.)”
Importantly, the Act does not limit when and how this prohibition applies, which means if you live in New South Wales then it applies to you regardless of where the surrogate mother lives, where the surrogacy procedures take place, or where the child is born. If you enter into a commercial surrogacy arrangement in India, you will be committing an offence under this section of the Act and you could be subject to the stated penalties (currently a penalty unit in New South Wales is $110). Whether the authorities are able to properly investigate or successfully prosecute these kinds of offences is another matter, but the law states what the law states.
Other Australian considerations for Indian Surrogacy
At this stage, I haven’t been approached for assistance in relation to parentage orders arising from these surrogacy arrangements, it appears to me that a parentage order might not be required. If the child born through surrogacy was legally recognised (ie, as named on the birth certificate) as the child of the intended parents in India and granted a visa/citizenship to Australia on that basis, then I suspect that legally that child will be a child of the intended parents in Australia and nothing further would be required in terms of a parentage order in Australia. As I said, in many cases, it’s a one-stop-surrogacy-shop.
Of course this is just my initial opinion based on the assumption of the complete process handled by the clinics in India as what has been reported to me so far, however different clinics offer different services and so ultimately each situation would need to be assessed separately.
Why India?
All of my clients offer the same reason for considering surrogacy in India – the cost. In India, the cost of finding a suitable surrogate, undergoing the medical procedures to achieve conception, expenses of the pregnancy and birth as well as the legal processes to recognise parentage is substantially less than Australia. Of course there are other options in terms of surrogacy destinations around the world, some of the other popular destinations being South East Asia (ie, Thailand) and Eastern Europe (ie, Georgia) but India tends to be the preferred destination time and time again due to the generally high level of professional (as well as English) education/qualification.
What next?
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.
ErnPhang 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.
