The world continues to get smaller, and as it does, a lot of things once thought impossible becomes possible. Unfortunately, sometimes this creates undesirable results.
We’ve written on several occasions now on recent issues and developments in international surrogacy – and unfortunately not many of those developments have been helpful to couples wishing to grow their family. The Baby Gammy case has resulted in a tightening of regulations in Thailand, and recent events has led to India placing a limited ban on surrogacy.
It has since emerged that an Australian couple allegedly abandoned a baby boy in India because they “already had a boy at home” and “only wanted the girl”.
If this is true, this is a terrible thing. What these surrogates are doing should be considered a favour. Even if the arrangement is a commercial one, they have done nothing to warrant such poor behaviour.
To a certain extent, the Surrogacy Act 2010 (NSW) prevents this sort of bad behaviour. The safeguards that it puts in place – counselling, legal advice, and a report by an independent counsellor after the child is born, can go towards preventing some of these tragedies from occurring.
The end result is that the child born from the surrogacy arrangement is legally recognised as the child of the intended parents – and if done right, both you and your surrogate would have some peace of mind that you have done the right thing, and in the right way.
The cost of the surrogacy process varies greatly depending on the kind of procedures that you’ll be going through – so budgeting for the whole process can be difficult if you’re not sure what’s ahead of you.
For example, if you’re going through some form of artificial reproductive technology process like in vitro fertilisation there’ll probably be substantial medical costs even if some are subsidised by health insurance. After conception, there’ll also be a range of other costs normally associated with the pregnancy and the birth (ie, health insurance, ultrasounds, medical checkups and tests, consultations with the obstetricians, medical consultations with the obstetricians, pre and post-natal classes, if you so choose).
The costs that are unique to the surrogacy process, but generally apply to all surrogacy arrangements, are the costs associated with various consultants, such as psychologists and lawyers, with respect to entering into the surrogacy arrangement and subsequently applying for the parentage order. While these costs can vary, I expect they should not vary too greatly as they must all satisfy the same requirements at law.
Surrogacy Arrangement
Section 34 of the Surrogacy Act provides that the surrogacy arrangement must be in writing. So who’s going to write this for you? The majority of our clients ask us to prepare the surrogacy arrangement for them. I’d personally recommend this, unless you’ve gone through the surrogacy process before and have a template for a surrogacy arrangement previously accepted by the Supreme Court. If not, then for peace of mind, ask us (or your own lawyer) to prepare the surrogacy arrangement for you. Costs associated with preparing the surrogacy arrangement can vary depending on the complexity of the nature of your relationship with the surrogate mother or parents, and what you want to include in the arrangement. In most cases, we’re able to offer a fixed fee quote to prepare the surrogacy arrangement once we’ve established and agreed on its scope.
Counselling Required
Section 35 of the Surrogacy Act provides that the intended parents and surrogate mother or parents must have received counselling from a qualified counsellor (ie, we generally refer to psychologists) before entering into the surrogacy arrangement. The surrogate mother or parents must also receive counselling before consenting to the parentage order. Obviously, there’s a cost associated with all of the counselling which again can very depending on whether the parties being counselled respond appropriately to the counselling. If they don’t, then I expect that it could justify further counselling until such time as the counsellor is able to certify that the parties have satisfied this requirement. Costs range for fixed fee arrangements to hourly rates depending on the complexity of the situation being addressed or the consultations involved.
Legal Advice Required
Section 36 of the Surrogacy Act provides that the intended parents and surrogate mother or parents much have obtained legal advice about the surrogacy arrangement before entering into it. Further, the legal advice to the intended parents and to the surrogate mother or parents must be independent form one another. In these situations, we offer a fixed price consultation for reviewing and providing advice on the surrogacy arrangement to either intended parents or surrogate mothers or parents.
Applying for the Parentage Order
By the time you’re ready to consider this part of the whole process you’ve probably gone through months worth of treatments to conceive, months of waiting during the pregnancy culminating in the excitement of the birth. You’re nearly there. The legal conclusion of this whole process is to have your child legally recognised as your own. Leaving aside the changes to the law introduced by the Surrogacy Act, the existing presumption is that mother of a child is the woman who gives birth to the child. But surrogacy has changed all that, not just medically, socially but also legally. The law now recognises that a surrogate mother can give birth to your child, but that child will be your child and not the surrogate mother’s child – and that happens by effect of a parentage order.
Having satisfied all the requirements of the Surrogacy Act, the last step is to apply to the Supreme Court for a parentage order which formally and legally recognises the child born through surrogacy to be the child of the intended parents. Aside for the the costs associated with satisfying the requirements (such as preparing the surrogacy arrangement, and obtaining counselling and legal advice), actually applying for the parentage order incurs the costs in relation to preparing the application, compiling the supporting documentation, the filing fee with the Supreme Court, as well as appearing in court in support of the application. While we generally offer an hourly rate with respect to this work, we’re able to provide fixed fee estimates for different aspects or stages of the work throughout the process.
Budgeting for legal costs
Without being able to foretell the future, I try to explain to our clients what they should expect, especially with respect to budgeting for legal costs in the surrogacy process. It’s not an exact science and more often than not, we need to revisit every step each step of the way. If it’s any consolation or reassurance, I advise clients that the legal costs associated with surrogacy will probably be one of the smallest cost components of the whole process – especially compared to the medical expenses that they may incur or probably have incurred before consulting my office. But like those medical expenses, the cost of legal services (or counselling services for that matter) are unavoidable – despite some feedback to the contrary – if you intend to properly follow the process to achieve your goal of being legally recognised as the parents of your child born through surrogacy.
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.
We’ve previously written that you should avoid giving gifts to your surrogate – this is to avoid running foul of the Surrogacy Act 2010 (NSW). The Surrogacy Act 2010 says that any surrogacy arrangement that involves giving the surrogate a fee, reward or other material benefit or advantage other than the surrogate’s reasonable surrogacy costs.
This is further defined in Section 7 of the Act. In summary though, these are costs of the surrogate:
In trying to become pregnant, including any medical costs, or travel and accommodation costs;
During the pregnancy, including pre-natal and post-natal medical costs, travel and accommodation costs, additional health or life insurance obtained by the surrogate (that the surrogate wouldn’t have gotten if she wasn’t pregnant), reasonable costs incurred with respect to the child, or the surrogate’s unpaid leave for up to 2 months.
In relation to legal advice, counselling, or being involved in court proceeding
These costs must be provable, and the surrogate (or the intended parents) must have receipts for all these costs.
Because of this, you must be very careful when dealing with reimbursing or paying any amount of money to your surrogate. If you are planning to give something or do something for your surrogate that goes beyond what she needs for medical, travel, legal, or counselling costs, before you do this, you must seek legal advice from your solicitor.
Failure to do so might result in a delays with your application, or in the worst case scenario, a failed application and criminal charges.
It’s sometimes a bit of a minefield when dealing with surrogacy – fortunately we can certainly assist with helping you run through the gauntlet. Give us a call if you need any help.
The question of compensation for surrogacy is a very tricky one. It’s fraught with moral and ethical questions, difficult to answer. On one hand, altruistic surrogates are very few and far inbetween, and women who are unable to bear children are often desperate to find someone who is able to help them start a family. On the other, there are questions in relation to whether pregnancy and conception should be available for “sale” or whether people should be allowed to “purchase” babies.
The NSW position says that surrogacy agreements are unenforceable. It doesn’t even go into contracts. It says no, we’re not dealing about a transaction, whether commercial or altruistic. We are dealing with human life.
Starting down the compensation path is a slippery slope. There are more than enough stories about surrogacy in poor foreign countries where poor mothers enter into agreements to essentially become baby incubators, and more often than not, they do not get paid much for it.
The second reading speech for the Surrogacy Act 2010 NSW in Parliament sheds some light in relation to the considerations of the legislators:
This offence aims to prevent the commercialisation of human reproduction. As the Standing Committee of Attorneys-General noted in its 2009 discussion paper, “commercial surrogacy commodifies the child and the surrogate mother, and risks the exploitation of poor families for the benefit of rich ones”.
The NSW legislation says that the surrogate’s costs are to be compensated. This can be medical, legal, counselling, and any unpaid leave due to the pregnancy. Is this good enough? It’s hard to say.
Nevertheless – Given the moral and ethical questions surrounding this, there will unlikely be a position that everyone will be happy with.
A Surrogacy Arrangement is an arrangement where a woman (called the Surrogate or the Birth Mother) agrees to become pregnant with a child, and for the parentage of the child born as a result of that pregnancy to be transferred to another couple (the Intended Parents). Legislation surrounding Surrogacy Arrangements are relatively new in Australia and are governed on a State-by-State basis. In New South Wales, Surrogacy Arrangements are dealt with under the Surrogacy Act 2010.
There are a number of key points in the Surrogacy Act, the most important being:
That a Surrogacy Arrangement must be altruistic and no money (other than reimbursement for medical expenses) must be paid to the Surrogate.
That a commercial Surrogacy Arrangement is illegal.
That there must be a demonstrated medical or social need for the Surrogacy Arrangement.
That the Surrogacy Arrangement must be in writing.
That the Surrogacy Arrangement is non-enforceable.
That counselling and legal advice must have been received by all parties before entering into the Surrogacy Arrangement.
That a independent counsellor is to be appointed after the birth of the child to assess whether the Surrogacy Arrangement is in the child’s best interest.
There are a number of other important matters that the Surrogacy Arrangement must touch on, which will be the subject of future blog posts.
If you are considering Surrogacy as an option, we can assist you through this process by:
Providing the Intended Parents with advice in relation to the Surrogacy Process
Providing Surrogate or Birth Mother with advice in relation to the Surrogacy Process
Drafting Surrogacy Arrangments
Providing advice and guidance in relation to making an application for parentage orders in the Supreme Court of New South Wales
We believe in plain language and practical advice, so that the options available to you and our recommendations are clear, simple and affordable.
For more information on our services and quotes on our professional fees, please complete the Quick Enquiry Form. One of our experienced lawyers will contact you to explore how we can assist you in relation to your Surrogacy Arrangement.
