Tuesday, April 14, 2015

Surrogacy: the fourth trimester

Last week when I was with some clients describing how surrogates need to be supported after they have given birth, and given the baby to the intended parents, one of my clients said: "Yes, that's the fourth trimester."

How apt. Often when intended parents and the surrogate and her partner prepare for the surrogacy, they prepare for the obvious: there is to be a pregnancy and birth, with all that entails, and then afterwards, in the land of sunshine and roses, the child is given away, an assessment is done (at least in some States) and then orders are made. All is good with the world. The child grows up to know who mum and dad are, and who is the magic woman and her partner who made all this possible.

However, for surrogates, it is not always sunshine and roses after having given birth and having given the baby away. The reasons are obvious:


  • while once the centre of attention of all while the baby was growing in her tummy, the focus of the parents is now on the baby, and not on the surrogate
  • the surrogate's body has undertaken physiological changes from the pregnancy, has a large amount of hormones running through her system that are telling her that she should have a baby, but has given the baby away
  • sometimes the pregnancy and birth have unexpected complications
  • all the while, the surrogate is supportive that the baby, their baby, has gone home to its parents.
This process can be tricky to manage. It was brought home to me again recently when I thought that a surrogacy arrangement had gone really well- my client the surrogate (and her partner) had coped well with the pregnancy, had gone full steam ahead into the surrogacy arrangement, but after lots of careful reflection, the pregnancy had been pretty straightforward, as was the birth, and the child was handed over. All apples, I thought. 

But then I read a post-birth report, which said that my client the surrogate was struggling with the process, and feeling unsupported. I got my clients in. All was good. They were really positive about the surrogacy. There had been some initial issues post-birth, but the determination to hand over the child was always there. 

What happened reinforced to me some things that I have been doing from day one, and some things I need to do better.

What I have always done

Some years ago I presented to a group of fertility counsellors. I emphasised to them that one of the keys to making a surrogacy work is to value the role of the surrogate. After all, she is the woman who at a risk of 1 in 10,000 of death from pregnancy and childbirth (as it is for any woman undertaking pregnancy and child birth in Australia), a rate much higher than winning the lotto, is giving the gift of life to others.

I said that she needs to be cherished. The fertility counsellors were amazed when I talked about the need for the surrogate to have adequate life and income protection insurance, for example. Not a legal requirement- but if not done and something went wrong, what would be the outcome for her, her husband or kids? Apparently lawyers had addressed them before, but no one had talked about insurance. Astounding! I would have thought it the most obvious thing. If you truly care for and cherish this special woman, the first thing you would want is to have adequate insurance.

For some years I have worked with a very good insurance broker who is able to ensure that surrogates have proper levels of insurance.

I also said that the surrogate needs to be empowered. In the surrogacy arrangement amongst the clauses that say that she shouldn't throw herself out of planes, take drugs or drink, I have always insisted that there is a clause that says that she has the same rights as every other woman to manage her pregnancy and childbirth as she sees fit. Apparently this is an innovation. For me, it is stating the blindingly obvious, and the basic law: a arrogate like any other woman is in control of her body. No one else should be telling her what to do. 

I also insisted that there be ongoing counselling. This again is not required by law, and some of the counsellors took me to task for this, but I was and am  insistent that the surrogate and the intended parents (typically the mum) have counselling at 3 months and 6 months term, and 3 months after birth- to make sure any lingering issues are addressed. Prevention is always better than cure.

What's new

But now I realise I and my team have to follow through with each of my surrogates who are clients- just before and just after the birth, to make sure that they are OK, and for them to know that they are valued and supported. I don't want to read reports in the future that one of my clients felt unsupported. I want my clients to know that they are supported, that we care, and we want the whole process to go smoothly, because that's in their best interests, and of course the best interests of the most precious of them all, the child. 

And that's not all. I encourage all my clients who are surrogates to reach out to other surrogates, either online or in person, and ask- before they go through the surrogacy process, and during- what is it like? It's one thing for someone like me, a lawyer, or a fertility counsellor to talk about the process, quite another for a woman who has been through the process herself to pass on her pearls of wisdom and support.

These changes are a good starting point to helping this most valuable of people feel wanted, not to feel alone, and be able to adjust to life for herself, her partner and their kids after surrogacy.

Tuesday, April 7, 2015

Surrogacy debate: whose rights are we concerned with?

The Chief Justice of the Family Court of Australia, Diana Bryant, will be the keynote speaker on 17 April in Brisbane hosted by the Australian Association of Women Judges, on the topic: Surrogacy: whose rights are we concerned with?

Her Honour will deliver an address, followed by a panel discussion. The panellists will be her Honour, Professor Andreas Schloenhardt from the University of Queensland and me.The panel will be moderated by Justice Roslyn Atkinson from the Supreme Court of Queensland. It promises to be a lively evening!

Chief Justice Bryant has previously decried human trafficking in surrogacy. She has also called for the enforcement or scrapping of laws that criminalise intended parents undertaking surrogacy overseas. Her Honour recently proposed that Australia needed to act quickly, and unilaterally, to set in place certain criteria before kids can move to Australia.

Professor Schloenhardt is an expert as to human trafficking, writing extensively on the topic.

Details of the event:

Date: Friday 17 April 2015

Time: 5.30pm to 7pm

Place: Banco Court, Supreme Court of Queensland, George Street, Brisbane

Cost: FREE, all welcome

RSVP: Kelly Morseu (07) 3247 9214, email: Kelly.Morseu@justice.qld.gov.au

Tuesday, March 31, 2015

Hague moves toward an international convention

When babies move between countries, at times the rules that apply appear to be inconsistent, if any. Each country seems to be making up their own rules, which are often inconsistent with other countries' rules.

For over 100 years a number of countries, including Australia, have met at The Hague in the Netherlands and agreed to conventions covering international rules, including the Hague Inter-country Adoption Convention and the Hague Child Abduction Convention, to name two. The organisation at The Hague  is called The Hague Conference on Private International Law.

For some time now, as I have blogged before, The Hague Conference has been looking at the possibility of a Hague Convention concerning private international arrangements for children, including international surrogacy arrangements.

It looks as though there will be the bare bones version of a convention early next year, after The Hague Conference agreed to convene a group of experts early next year to look at private international rules concerning children, including international surrogacy arrangements.The group should be geographically representative and should be appointed in consultation with member nations.

When I was asked by any number of media following the Baby Gammy saga about how to prevent it happening again, I said that there were three ways:

  1. Australia allowing compensated surrogacy under a national system, so that we were not exporting our problems around the world. Australians generally would rather undertake surrogacy at home not abroad, if it is available.
  2. Australia seeking to persuade other countries to put in place appropriate standards for IVF and surrogacy, to minimise the possibility of trafficking and exploitation.
  3. There being a sensible Hague Convention.
The C
Hopefully,  this step by The Hague Conference will bring about the last of these.

Wednesday, March 25, 2015

Surrogacy in Canada presentation

Last week I had the pleasure of hosting visiting Canadian surrogacy lawyer Nicolle Kopping-Pavars in two surrogacy/fertility presentations in Sydney.

The first was to the NSW branch of ANZICA, the Australia and New Zealand Infertility Counsellors Association. Nicolle gave an overview of surrogacy in Canada. I gave an update of surrogacy and fertility law in NSW.

The second was to a public seminar about surrogacy in Canada. Surrogacy in Canada is an option for those from NSW, Qld and the ACT. In those jurisdictions it is an offence to enter into or to offer to enter into a commercial surrogacy arrangement wherever it might be, if you are ordinarily resident in those places (or in the case of NSW as an alternative, if you are domiciled there).

Surrogacy in Canada is an option because it is also altruistic, i.e.,  a fee is not paid to the surrogate. So far so good. Treatment does not need to occur in Canada. For example, an embryo might be able to be created in Australia and exported to Canada for implantation there.

Another possibility, if donors are required, is to have the embryos created in California or Nevada, with implantation there.

There are also issues from a legal viewpoint that the surrogacy contract in Canada does not run foul of Australian law. It is essential therefore that the whole process is managed from both ends- both in Australia and Canada- by experienced fertility lawyers who know what they are doing, to minimise risk.

Monday, March 9, 2015

Brisbane donor seminar

On Saturday morning I had the pleasure of presenting to a seminar in Brisbane about egg, sperm and embryo donation. The seminar, organised by Brisbane fertility counsellor Antonia Lockitch, was for those who either wanted to be donors, or those intended parents who may have to rely on donors to become parents.

One of the curliest questions I was asked was about why I do not recommend the use of known donors as a general rule- because it can be very complicated, there are few if any legal protections, and with bad luck the matter can end up in the Family Law Courts.

Good on Antonia for running the seminar. Information as Benjamin Franklin said, is power. The more  information that intended parents and prospective donors have, the better!



Visit to Canberra Fertility Clinic

In a jam packed trip to Canberra last week for the surrogacy roundtable, I managed to cram in a visit to the Canberra Fertility Clinic, courtesy of Dr Martyn Stafford-Bell.

Dr Stafford-Bell had earlier given powerful evidence to the surrogacy roundtable about how in Australia we have a positive experience for surrogacy, and we should change the laws to enable Australian women to be compensated for surrogacy, when everyone else in the process is paid, including doctors, counsellors and lawyers. Why shouldn't the person at the centre of the process be paid, and properly compensated for her efforts?

Canberra Fertility Clinic are one of the pioneers of surrogacy in Australia, putting in place procedures, such as an Ethics Committee, mandatory counselling and legal advice, to make sure that the process is thorough and a positive experience.

I talked with staff about various surrogacy and fertility law issues, and then had the opportunity to tour the lab.

I was amazed at the latest technological innovation, which helps keep Australia's IVF labs at the forefront of international developments. Now when the cells are in the incubator, there is above each cell a camera taking shots of the cell every 10 seconds as a form of slow mo. It is then possible to look at the cells as they are dividing and developing. Extraordinary! I thought I was  the luckiest man alive to see such magic. For technicians this is often the job- the mundane, quotidian existence- but for someone who is not witnessing this every day, it is extraordinary to see life itself forming and growing.

When I was at Canberra Fertility Centre, I pondered about how the laws of different States impacted on their business and the lives of those who want to have children:


  • While Canberra Fertility Clinic has acknowledged expertise in surrogacy, it is in effect unable to help intended parents from Victoria (just over 3 hours drive away), SA or WA because the laws of those States deem that the only IVF clinics who can help are the IVF clinics in those States. Nuts! Are we one country or a collection of 19th century independent countries? One country courtesy of the Australian taxpayer through the Medicare system pays for these clinics. One country (largely) through the National Health and Medical Research Council licensing requirements for these clinics sets out their licensing rules, but those who want to have children cannot choose where they can go for IVF treatment. Why isn't there freedom of choice?
  • Twenty or so minutes drive away in NSW, intended parents do not have these restrictions. They can seek medical treatment wherever in the world they like.
  • In the ACT only couples can seek parenthood through surrogacy. Singles are banned. There are no such restrictions in NSW.
  • In the ACT the surrogate must be part of a couple. There cannot be a single surrogate. There are no such restrictions in NSW.
  • In the ACT it is a criminal offence to engage in commercial surrogacy overseas- but in Victoria it is not. 

Sunday, March 8, 2015

Update on House of Reps surrogacy roundtable



On Thursday I was in Canberra, giving evidence at the surrogacy roundtable of the House Of Representatives Standing Committee on Social Policy and Legal Affairs.

There were about 20 witnesses, ranging from the Chief Justice of the Family Court, Diana Bryant, and the Chief Judge of the Federal Circuit Court, John Pascoe (in their personal capacities), to legal and social academics researching surrogacy, various advocacy groups, fertility counsellors, one of the pioneers of surrogacy in Australia, Dr Martyn Stafford-Bell, and me.

Chief Justice Bryant stated in effect that the laws which prohibit some Australians from undertaking commercial surrogacy overseas ought to go. She said that it was clear that State authorities were not prosecuting, even when many people from those States went overseas for commercial surrogacy- either the law should be enforced or there should not be laws on point- as it made a mockery of the law for there to be laws which were not enforced.

Chief Judge Pascoe said that it was a human right for all of us to know where we came from. This was int he context of surrogacy and egg and sperm donation. Many children will not know their surrogate and will not know their genetic origin.

One of Australia's most experienced infertility counsellors, Miranda Montrone, representing the Australian and New Zealand Infertility Counsellors Association, said that "We do it well in this country." She saw surrogacy arrangements here as being in a loving context, where children grew up secure, knowing who was their surrogate and broader family.

In answering criticism of adults conceived through anonymous egg and sperm donation, Louise Johnson and Kate Bourne from the Victorian Assisted Reproductive Treatment Authority said that Australian practices now were quite clear: the child has the right on turning 18 to find out his or her genetic origin. Kate Bourne also talked of helping adults conceived from donations to understand their place int he world.

Sam Everingham from Surrogacy Australia called for there to be comprehensive reform, to reflect the reality of the thousands of Australians who have undertaken surrogacy overseas. This call was backed up by Professor Jenni Millbank and Dr Stafford-Bell.

While I agreed with the thrust of those comments, I also called for national laws concerning surrogacy, so that we do not have discrimination, that intended parents are free to choose medical treatment throughout Australia, and that orders made in one State mean that the intended parents are recognised in the child's State of birth, and not the system that we have now, which is hit or miss. The example I gave was of the couple in Midge Point, Queensland. The wife's sister in Adelaide was prepared to be a surrogate. If the child were conceived and born, an order would be made in the Childrens Court of Queensland.

That order would recognise the parents as the parents under the Family Law Act, but would not recognise the parents as parents for the SA birth registry. Instead they would have to get a new entry opened in Queensland (a very unlikely prospect because the child was nor in SA), close the SA entry, then alter the Queensland entry. I said that if the surrogate were in Melbourne, then the birth entry could be altered, but only after, following laws passed in Victoria in October, by obtaining a registration order from the Victorian County Court. This process would add about another $10,000 to the bill.

It is unclear what action the committee might take, but a possible outcome is a formal Parliamentary inquiry, a step championed last year by both the Chief Justice and the Chief Judge.