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