The Truth about Surrogacy

I get asked so many questions, and hear so many inaccurate statements about surrogacy, I thought a post explaining surrogacy in Qld might be helpful. I probably should say up front that I am no expert in the process, but I do understand the process and the law relating to surrogacy in Queensland. I don’t claim to be an expert in the law in any other states in Australia or anywhere else in the world.

Before I start I might explain some terms. Couples looking for a surrogate are referred to as the intending parents or IPs. So the female is the intending mother (IM) and the male is the intending father (IF). The couple may be heterosexual or same sex (although not for long in QLD, wonderful Newman thinks only a male and female should be IPs and so will be changing this law in the very near future). The couple just must have a medical reason for requiring a surrogate.

The surrogate can be either gestational or traditional. A gestational surrogate or GS means basically the oven – that is the baby is from the IMs eggs (or donor eggs) and the IFs sperm (or donor sperm). This is the most common form of a surrogate and most fertility clinics preferred option. A traditional surrogate or TS means the surrogates uses her own egg and the IFs sperm or donor sperm. Many fertility clinics will not work with TSs as there are concerns about the psychological impact on the surrogate in that she is basically carrying her own child and may have difficulties giving the child up. However I know at least 2 TSs who have had no problem with this. Obviously TS is a lot easier from a medical point of view as a fertility clinic is not necessary as the TS can get pregnant herself using the turkey baster method. This also makes the process heaps cheaper.

Ok so back to the process.

The most common question I get asked is “is it legal to do surrogacy?” It is legal to do surrogacy in most states of Australia. The main difference in the different laws in Australia is some states (including Qld) make commercial surrogacy illegal. Which means in Qld and most other Australian states, the only option is altruistic surrogacy.

Altruistic surrogacy basically means that you cannot pay or provide gifts to a surrogate for carrying your baby. Australian surrogates carry other people’s babies for free. Crazy right? Why would they do this? I ask many surrogates this question and the general reply is that given they can help another couple have a baby, why not. I guess for a more in depth answer to this question you would have to ask a surrogate.

Given surrogacy in Qld is altruistic, the biggest hurdle is finding a surrogate. Fertility clinics assist in sperm and egg donations but it’s basically illegal for them to assist surrogates and IPs to meet up. The law states that you cannot advertise or make a statement with the intention of encouraging someone to be a surrogate. This makes it very difficult for IPs to find surrogates. A lot of surrogates are IPs sisters, female friends, even their mothers. But for IPs, like us, who don’t have this option, they have to rely on the kindness of strangers.

So how do you find a surrogate? Well thank god for the modern technology, the internet! There are several websites designed for IPs looking for a surrogate and surrogates looking for IPs to meet up. IPs and surrogates need to be careful what they write though as remember its illegal to advertise or make comments designed to encourage surrogates to come forward.

So many IPs post their stories and wait and hope that privately a surrogate will contact them. And that’s basically it. So as you can imagine this is a very difficult process and can take months, even years.

The law states that a surrogate must be over 25 years of age and have had at least one child – although it does say there may be exceptions – whatever they may be.

The law also requires IPs and the surrogate and the surrogate’s partner to attend counselling. The counsellor is required to ensure both couples fully understand the process and the issues that may arise during the process. The counsellor must then write a report saying they are comfortable that both couples understand the process.

Both couples are then required to obtain legal advice. This legal advice must include any issues that may arise out of the process. It also ensures both couples understand that the surrogate and the surrogates partner are legally the baby’s parents. I find a lot of people struggle with this concept, as do I. So for even though the baby will be 100% biologically our child, Chloe and Matt will be the legal parents of the baby. This means that it is completely up to the surrogate to give up the child to the IPs. Basically if the surrogate decides to keep the child there is not a lot the IPs can do.

But on the other hand, there is also the possibility that the IPs can change their mind and decide not to take the child. So the legal advice covers all this sort of stuff – ensures everyone knows of what could go wrong.

Once the legal advice is obtained an agreement must be drawn up between the couples. The law does not state what must be in this agreement – which is a strange thing. The only thing the law does say is that the agreement is not enforceable. Weird right? What’s the point of it then? Well who knows really? But I guess it is a good opportunity for both couples to put down in writing what they expect from the process.

Probably the main thing that’s in most agreements is what costs the IPs will cover. Whilst it is illegal for the IPs to pay the surrogate, the law states that the IPs must pay all reasonable expenses incurred by the surrogate. So reasonable expenses might include – legal and counselling fees, medical fees, parking, petrol, life insurance, death insurance, health insurance, maternity clothes, drugs, loss of wages, required child care etc etc. Basically anything the surrogate might have to pay for to get pregnant or whilst pregnant or recovering from giving birth the IPs must pay for. But what is deemed reasonable to one surrogate and IPs might be different to others.

Once all this is taken care of the medical process starts. A really important thing to note here, and possibly the most unfair thing about surrogacy, is that Medicare does not recognise surrogacy and therefore does not provide a rebate for any procedures relating to a surrogate getting pregnant. So you know all those expensive IVF procedures? Well the IPs pay for all that – absolutely no Medicare rebate at all. And because Medicare won’t provide a rebate, health funds also refuse to pay up. Ridiculous right? I mean why does Medicare pay for infertile couples to do IVF but not couples requiring surrogacy? This is the biggest thing I just can’t get my head around. This is also probably the biggest cost in the surrogacy process. I reckon it will cost me $15,000 to $20,000 for the IVF alone. And that’s provided we get pregnant first go. Retrieving my eggs alone will cost $13,000. So I bloody better get some good eggs because our budget only allows for one egg pick up.

Anyway the IVF process is the same as any other IVF process, they take my eggs, take Michael’s sperm, put the two together and then hopefully we get some embryos. One embryo is then transferred to Chloe who will hopefully get pregnant – first time!!

Once the surrogate is pregnant Medicare and the health funds come to the party. A surrogate is considered as any other pregnant woman. Basically it is not recognised as a surrogacy. Given this the surrogate has full control over the pregnancy and makes all decisions relating to the prenatal care. Generally though the surrogate and IPs work together on the process.

Once the surrogate has the baby, the surrogate will hopefully hand over the baby to the IPs. The IPs then must wait 28 days but no more than 6 months to apply for a parentage order. This basically changes the legal parents from the surrogate and her partner to the IPs. The birth certificate is changed to reflect this change. Both parties must consent to the parentage orders.

Oh I forgot a step. Prior to the parentage orders being granted, both couples must attend more counselling. The counsellor must ensure that both parties are ok with the process and the granting of the parentage orders are in the best interest of the child. And yep another report needs to be drawn up.

And that’s the end of the process!

Of course I have only just touched on the mechanics of it. Between all the steps a lot of bonding occurs between the surrogate, her partner and the IPs. I have not attempted to touch on the emotional part of it – that’s what my blogs for.

Anyway I hope this explains the process for everyone. Please feel free to ask me questions and for those experienced in the process, if I have missed anything let me know and I will update.

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This entry was posted in Counselling, Infertility, Lawyers, legal, Pregnancy, Surrogacy, Surrogate and tagged , , , , , , . Bookmark the permalink.

One Response to The Truth about Surrogacy

  1. Stephanie says:

    This is a really great post. I guess I never realized how much bureaucracy is involved in the process. I know the laws and regulations are different here in the States but it gives me a good idea of what goes on in a general sense. My husband and I have good friends who are gay and I told them that if they were ever interested we would agree to be surrogates for them. That’s probably a long way off, but it’s interesting to get some insight in what we might expect if we ever go down that road!

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