birth certificate

The One Stop Surrogacy Shop

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.

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.