Not being a child born through surrogacy, I obviously can’t speak from first hand knowledge – but being a child born of my own mother, I know the relationship that I have with my mum and the knowledge of having been born of her womb is as close as can ever exist regardless of whether it’s through nature or nurture. While I may have other important and intimate relationships throughout my life (with my parents and extended family, as well as with wife and my own children) there’s nothing that can replace the fact that I was conceived in and born from my mum.
For any child born through surrogacy, even though they don’t know it or acknowledge it, there’s a bond that will always remain, even if it’s not realised or forgotten over time – but they can’t change the fact that they were born from their surrogate mother. In the same way, adopted children no matter who they are cannot ignore the fact that they have a biological mother (and father) even if their relationship with their mum, or adoptive parents, have since replaced that at a personal level or by choice, they wish to have nothing to do with their biological parents.
I expect there will be varying opinions on this, but for me, I think the relationship between a surrogate mother and the child born through surrogacy is important, even if that connection only lasts for the relatively brief period of gestation. Those formative months can in many ways influence how that child grows throughout the rest of its life. It almost goes without saying, but what happens if the surrogate mother is a smoker, drug addict or has some other lifestyle which is widely accepted as not being beneficial to the pregnancy? The child has no choice in the matter, it’s largely the lifestyle choices of the surrogate mother – and ultimately, the decision of intended parents as to who they wish to carry and give birth to their child.
It’s all about trust
So is finding the right surrogate mother an important decision? Yes, it is – and since it is, how do you go about making that decision? Well, in many cases, intended parents who have consulted us in the past generally have approached family members or very close friends. Naturally, they’re people they know and trust to care for their unborn child throughout the pregnancy. At the end of the day, that trust is probably the most important factor in choosing the right surrogate mother.
If you’ve been reading through the articles in this website, one thing you’ll notice is our comments about the surrogacy arrangement. Despite introducing the Surrogacy Act and the developments in the law and related legislation, surrogacy arrangements remain legally unenforceable – rather it’s role is only as evidence that a surrogacy arrangement existed for the purposes of the parentage order. The surrogacy arrangement doesn’t give rise to rights or obligations, in contract or otherwise, between intended parents and the surrogate mother (or parents) in relation to the child or each other. So you can’t use it to determine how your surrogate mother will behave during the pregnancy (or even that they will willingly consent to the parentage order after the child is born), and you can’t use it to enforce what you believe are your rights or the promises made when you entered into the surrogacy arrangement. Of course whether this will change, maybe only time will tell. Perhaps if there’s public outcry about an increasing number of ‘broken’ surrogacy arrangements, politicians will be forced to revisit the current regime. But until then, it’s all about trust.
So who do you trust? Who do you trust to be able to not just carry your baby to term and give birth to you baby, but who will do all they can to look after your unborn baby during the pregnancy? Also consider no matter how much you might trust them, will they do what you think they should be doing throughout the pregnancy? I can say that even closest relatives (even between parents), regardless of trust, may have very different perspectives when it comes to the pregnancy even though everyone shares the same ‘best interests’ intention. The danger of it being very subjective and a very personal decision makes it that much more socially complicated – so navigate with care.
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.
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?
Prologue
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.”
Epilogue
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.
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.
The Surrogacy Act 2010 (NSW) says that a commercial surrogacy arrangement is a crime, punishable by fines and/or an sentence of up to 2 years imprisonment. A Commercial surrogacy arrangement is a surrogacy arrangement where a participant in the arrangement is provided with a fee, reward, or other material benefit or advantage.
The law was first put together to prevent the “commodification” or “commercialisation” of life. We have all heard stories about impoverished but fertile mothers in India and Ukraine being given a pittance to carry a pregnancy to its full term, with the fertility centre pocketing most of the profit. The law aims to prevent those situations from occuring. However, even if you are satisfied that an overseas fertility centre is doing the right thing by its birth mothers, the law also prevents you from engaging that overseas fertility centre so long as it gives any reward, fee, or advantage to the birth mother in excess of her costs.
But that’s not all. We have personally been asked in the past if it was fine to, “as a token of gratitude”, give a gift in appreciation to the birth mother, who has blessed the intended parents with the ability to start a family. The answer is no – it shouldn’t be done. A token of appreciation might turn the arrangement from an altruistic arrangement to a commercial arrangement.
You should always be careful and consider your actions – you don’t want to risk breaching the law, or worse, having your Surrogacy application fail when you finally get around to to it.
