There are a few of my clients who have asked me this question. The answer is that if you are a woman, yes, you do. You can’t go through the surrogacy process just because you feel like it. The Surrogacy Act 2010 (NSW) says that one of the preconditions to the making of a parentage order is that there is a medical or social need for surrogacy. It further specifies that if you are a woman, you must be unable to conceive on medical grounds, unable to carry a pregnancy to full term on medical grounds, unable to survive a pregnancy (or have health severely affected by a pregnancy), have a high chance of communicating a genetic disease to the child, or will give birth to a child who will not be able to survive or whose health would be severely affected by a pregnancy.
If you are a lesbian couple, the both of you will need to show that the both of you have a medical need for surrogacy.
If you are a gay couple, you will need to show that there is a social need – well, at this stage we assume that the social need arises out of the fact that men don’t have the equipment necessary to give birth to a child!
If you are a single man, you will still need to demonstrate that there is a social need for surrogacy – however, the court would likely ask is why can’t you find a partner, and do things the regular way. I suspect that this need will need to be demonstrated through a cultural expert or perhaps by a psychologist.
Whatever the case is, it’s still a good idea to get a referral from your treating doctor or from a specialist obstetrician or gynecologist, advising you that you have a need for surrogacy. If you haven’t done this yet and are considering whether surrogacy is for you – well, before incurring legal costs or counseling costs – speak to your doctor.
Understanding the social and legal complexities of surrogacy
Some time ago, a client contemplating surrogacy said to me, “I dunno what’s the big deal. My sister knows we’ve wanted a kid for so long, so she’s gonna help us out.” I took a moment before responding, “Yes, but you realise it means that your sister’s gonna have your baby!”
Is there something wrong with that statement? In the context of an altruistic surrogacy, you would probably think not. After all, the sister is simply offering herself as a gestational incubator for her brother’s child. The child might be a combination of her brother and her sister-in-law’s genes or perhaps a donor one way or another, but it won’t be hers genetically (hopefully). At the end of the process, she’ll give birth to her niece or nephew. So what’s the problem with that statement? What was your first thought when you saw the title of this article?
This article is largely an opinion and commentary piece. It’s not intended to provide legal information or legal advice, and should not be relied upon in any way – especially for legal research. I’ve just taken a moment to share some of my personal thoughts on the topic of surrogacy, and the challenges that I see for intended parents, surrogate or birth mothers, and children born through surrogacy. I also stress that I’m not offering any answers, in fact you may find that there could be more questions that arise from this article. I would be happy to receive your comments, after all that’s what makes a robust discussion on issues that must discussed in order to be advanced for the benefit of all concerned. Enjoy.
Where do babies come from?
It’s the question that all curious children eventually want to know, isn’t it?
For a very long time, sexual intercourse between a man and a woman, in one form or another was the only recognised way to achieve a pregnancy (except maybe for a single incident of immaculate conception, that is). It was the natural and biological result of that sexual act generation after generation. The human race has procreated throughout history by sexual reproduction and as a species, we depend on it to multiply and survive. So when a woman gives birth to a child, we assume that the woman has had sexual intercourse with a man, and that the man who had sexual intercourse with the woman is the father of the child. I think you’ll probably find that this assumption is wide spread across societies, communities and cultures all over the world – it follows what we all understand to be human biology, a natural science.
Given these preconditioned social assumptions, when reading the title of this article many of you would have first through ‘incest’, ‘taboo’, ‘scandal’ – or maybe not in those terms, but certainly there would have been a suggestion of it even if it wasn’t a conscious thought. But that’s a normal reaction, isn’t it? The statement, ‘my sister is having my baby’ immediately implies to most readers that the sister is pregnant with the brother’s child, which also implies that a brother and sister have had sexual intercourse resulting in conception. Of course, I intentionally chose that title to get your attention. But why did it get your attention? Maybe it’s because of the possible legal issues (incest is a criminal offence), or maybe it’s because of the social issues (it’s taboo, isn’t it?), or maybe is it because we all love a little scandal? If you had asked my client, he’d ask “… but what’s the big deal?”
Who’s your daddy? (and mummy?)
I think it’s fairly safe to say that today’s society does not accept (socially or legally) that a sister should have her brother’s child. Biologically, she can despite its various genetic dangers, but I suspect that the child and the parents of the child would be have difficulty being socially accepted by the wider community. That is of course, if we can only consider conception, pregnancy and parentage in the traditional sense.
The law as we know it reflects social and religious values, generally being conservative in nature, and it’s with those values that the law addresses the issue of paternity. There are a number of presumptions of paternity based on existing relationships between the mother and her partner or partners (also assumed to be male), while modern science also arms us with the ability to test for paternity through DNA sampling. Irrespective of the presumptions or tests for paternity, maternity has been widely accepted or assumed (biologically) to belong to the woman who gives birth to the child.
But today, the statement “the woman who gives birth to the child is the mother of the child” is not always the case. Our understanding of who is the father and who is the mother of a child is not what you might have learned from your parents or what you were taught in school. It’s all changed, especially in New South Wales with the introduction of laws recognising surrogacy, namely the Surrogacy Act 2010.
Where did the surrogacy laws come from?
A progressive society, especially a progressive society that recognises surrogacy arrangements or even same-sex parenthood (same-sex parenthood often being achieved through surrogacy, if not adoption), challenges the legal presumptions of paternity, the associated social expectations of identifying the father, and the biological understanding of who is the mother. Especially in a progressive society, social change generally precedes law reform, and in the case of surrogacy, medical advancements in assisted reproductive technologies preceded social change. While I assume artificial insemination has probably existed in all forms (some more crude than others) throughout history, in vitro fertilisation (IVF) has only been around since the late 1970s in humans after having been successfully tested in animals in the late 1950s. On the other hand, the laws dealing with IVF and other assisted reproductive technologies were only enacted in New South Wales in 2007 (Assisted Reproductive Technology Act 2007). Interestingly, other states such as South Australia and Western Australia had introduced similar legislation in 1988 and 1991 respectively, nearly 10 years before New South Wales.
As IVF has been with us for nearly half a generation, most people would not be shocked or appalled by the notion that sexual intercourse between a man and a woman is not the only way to conceive a child – or at least not as shocked as they were when they read the title of this article. With the growing understanding and acceptance of surrogacy, we also begin to recognise that a woman who gives birth to a child is not necessarily the mother of that child.
I’ve had the privilege of working in the area of surrogacy with would-be parents before the Surrogacy Act was introduced in New South Wales. Surrogacy as a medical/social process and procedure already existed before the laws did. IVF clinics were already assisting intended parents and their surrogate mothers to conceive and birth children. The medical technology existed, there was a level of social demand yet the laws before the Surrogacy Act failed to properly address the situation – potentially to the detriment of the intended parents, but especially at the disadvantage of any child born through surrogacy. Prior to the Surrogacy Act, children born through surrogacy had to be legally adopted by their intended parents even if they were the child’s biological parents.
I won’t say that the current surrogacy laws are the perfect legal solution to surrogacy arrangements – in fact, I believe there is still some way to go in terms of social and legal reform (but that’s a discussion for another time and another place). For now, consider that compared to other parents, who simply fill out the registry notification form at the hospital or birthing centre, intended parents (and the surrogate mother and her partner) to a surrogacy arrangement must still follow a legal process to be recognised as the legal parents through parentage order made by the Supreme Court. That’s a relatively long and costly exercise – but often, there is little alternative.
The future of parentage
I admit the concept of ‘coming from their mummy’s tummy’ is widely accepted with my young children and their peers. That’s considered ‘normal’ for young children, without necessarily labelling anything not that as abnormal. I recognise that there will come a time when my children will acknowledge that not every ‘kid in class’ came from their ‘mummy’s tummy’ (or even that they actually came from a ‘tummy’ at all). In the same way, I think most people acknowledge and accept orphans or children without parents, ‘illegitimate’ children or children ‘born out of wedlock’, children from single parent homes, adopted children or children of same-sex couples. Have I offended anyone by implying that these children are in any way not ‘normal’? Is the term ‘illegitimate’ children even politically correct at all these days? Before you start composing an angry reply to this article, take a moment to consider that perhaps 30-50 years ago (or certainly 100 years ago) there would have been real social and legal issues for some of those children – that would have been the reality of the times. Of course, not so today or at least not to the same degree even though the prejudice can still exist in some communities and cultures.
A progressive society doesn’t necessarily require wide spread acceptance and it doesn’t mean that pre-existing prejudices cease to exist. The very fact that most people who read the title of this article today probably make one assumption suggests that social acceptance still has some way to go, yet in another 30-50 years from now maybe that same assumption may no longer apply.
But yes, for now – we’re at the cutting edge of biotechnology and medical advancement, social acceptance is being tried and tested in all directions, and the law is slowly catching up with what is happening in the world around us. I have full respect for our clients who are going through surrogacy today. They’re really the pioneers in these largely uncharted waters. As lawyers, we only see a glimpse or a snapshot with a very limited scope of what intended parents (and their surrogate mothers) need to go through. I foresee some of the legal issues and can only imagine the kinds of social issues that children born through surrogacy will need to face as they come to terms with who they are and where they came from. The reassuring fact is that in time, it will only become easier and maybe there will come a time when we all say “Your sister is having your baby? It’s no big deal. It’s no big deal at all.”
For the most part, I’m traditional and conservative – whether that’s my cultural background or my Christian faith – and the opinions expressed in this article may be largely influenced by that as well. But I don’t judge anyone who has chosen this path. I have the utmost respect and admiration for their commitment and dedication to becoming a parent (and have a greater sense of appreciation and gratitude for my children as well).
Oh, and just in case you were wondering – I don’t have a sister.
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.
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.
If you are on the long journey towards starting your family, there are millions of things that you have to think about. It’s no suprise that you might overlook a few steps in the process. To a certain extent, a good doctor, fertility organisation, counsellor, and solicitor can help you out, but at the end of the day, you have to also make sure that everything’s been done to allow the journey to be as smooth as possible.
One of the matters that can be overlooked very easily is the surrogacy arrangement itself. If you have made an arrangement with a surrogate for her to carry your child, you need to get it in writing!
The Surrogacy Act 2010 (NSW) is the legislation that looks over this area of law. The Act basically says that surrogacy is accepted under certain conditions. The Act also establishes a number of “pre-conditions” before a court can make orders declaring that the intended parents are recorded as the parent of the child born as a result of the surrogacy arrangement.
Section 34 of the Act says that the surrogacy arrangement must be in writing. In the worst case scenario, if this isn’t followed then the court might be unable to make those orders. Even in the best case scenario, the failure to record the arrangement in writing could result in additional time wasted and further legal expenses, as the court must also be convinced that “exceptional circumstances” justify the making of those orders in the situation where a precondition was not met.
The moral of the story – get it in writing! Your journey may be long, but as long as you prepare adequately for it, it might not be a rough journey.