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Last month I wrote a piece about the costs associated with surrogacy, more specifically the things you need to consider when budgeting for surrogacy. Although this wasn’t in direct response to that article, my office received a very curious enquiry from someone who wanted to complain about the medical and legal costs associated with surrogacy.

Their view was that because surrogacy can only be altruistic (ie, embody selflessness, or more specifically performed without profit) then doctors and lawyers also shouldn’t charge for assisting people with surrogacy. In fact, in their view everyone who could assist with surrogacy should do so without cost and we should be obliged to assist the without fee.

Unfortunately, we regularly receive this kind of demand from random strangers, not just with respect to surrogacy – but with regards to surrogacy it does raise an interesting topic because of the role that altruistic surrogacy plays within the whole regime. (I’ll let you in on a little secret which is I’ve written a fairly controversial piece on commercial and altruistic surrogacy which I may publish in the coming months, but part of what I intend to discuss here is also partly arising from that line of thought so consider this as a bit of an introduction)

The bottom line, and I’ll state it fairly clearly, is that we operate a legal practice – it is a business that provides legal services such as advice, drafting and representation. There are on occasions where we provide an element of pro bono services (which involves a reduced fee or no fee arrangement), but in most cases we’ll charge a fee for the services that we provide. That’s the nature of our business. That’s how my lawyers and I earn a living. So to have been told by a stranger that we weren’t allowed to charge a fee to help them with their situation was a little alarming when it was first reported to me, but then I thought to consider the root of reasoning behind that demand.

Why altruistic?

Why does the law only recognise altruistic surrogacy? Well, it’s largely due to the potential exploitation of women for profit. Commercial surrogacy involves people (evidently, women) selling themselves or their bodies to become human incubators. I’m sure there are places where it happens right now, perhaps if I could say like human trafficking in all of its socially unacceptable forms (ie, children, prostitution, organs). Where there a demand, a supply and profit to be made – it will exist. However, in New South Wales not only is commercial surrogacy prohibited, it’s criminalised. But as I said, I’ll discuss this further in other articles in the future.

For now, only altruistic surrogacy.

I also think the importance around altruistic surrogacy extends further than just the prohibition of commercial surrogacy. What about for the benefit of the intended parents or in the best interests of the child? Shouldn’t there be some form of connection beyond a financial one? I discussed the importance of choosing the right surrogate mother in a previous article and stated that it ultimately comes down to trust.

Trust is not limited to the fact that a surrogate mother could choose not to consent to a parentage order, but trust in all things related to the pregnancy and the birth in terms of doing it in the best interest of the child and intended parents, but also according to the intended parents’ wishes. If the relationship was purely financially motivated, economics could give rise to outcomes and decisions which were less desirable and possibly unexpected – and with the current legal regime in which the surrogacy arrangement is unenforceable, the social consequences would be disastrous (however, I’ll indicate that the current regime is entirely founded on altruistic surrogacy, and any change to that would involve a complete overhaul anyway).

Despite some of the issues that intended parents have leading them to ask about commercial surrogacy, even if the law were to change, I still think given the nature of the relationships arising from surrogacy, altruistic surrogacy should always be the preferred option.

Altruistic service providers

So back to the issue at hand, if surrogate mothers and the surrogate arrangement is based on non-financial motivations and should be altruistic, what about other service provides in the surrogacy process such as doctors and lawyers? Of course I can’t really write for doctors, but I expect their position will be very similar to our own and that as professionals in our respective areas, we provide a service for a fee. Our involvement in the process is a professional, not personal one, and that we’re only there for the brief moment to satisfy the requirements of the procedure or process. Nothing more. That’s our job. For the time being, the law (and society) allows us to earn a living from our professional skill.

Are there altruistic service providers? Possibly. However, it all comes down to economics doesn’t it? There a demand for the service and so there’s a cost to supply the service. Generally, whoever receives the service pays for it, but even if they don’t then it just means that someone else pays. There’s always a cost (whether a financial cost or an opportunity cost).

Costing transparency

One thing I’m insistent upon with my team is costing transparency. I want our legal services to not just provide you with confidence and peace of mind in relation to our level of service and achieving your outcomes, but also in relation to the legal costs associated with that service and those outcomes. There’s no point offering a solution which is unaffordable – no one benefits. The legal process around surrogacy involves specific points where our services are required, and for that we charge a fee. If we’re not required, then we don’t charge a fee. It’s really quite simple. Unfortunately, if you were to just call and ask “How much does it cost?” that’s a question we probably wouldn’t be able to answer without being able to understand your situation and scope your requirements. We offer fixed fees whenever possible, but if the scope of the work cannot be determined for any reason, we will offer an hourly rate with fixed estimates for known segments of work or specific tasks. Ultimately, we look to work within your budget but also according to your expectations. It might not be altruistic in the truest sense of the word, but we still have your best interest at heart.

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.