Surrogacy sometimes ends up as a headline such as in 2019 when Foreign Correspondent covered surrogacy in the Ukraine. Unfortunately, rarely when it is a headline is it a positive story, and my heart broke for the women, babies and intended parents who have been left traumatised, mistreated and exploited.

I’ve written a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, which you can purchase in paperback and electronic versions.

If you are new to surrogacy, you can find our more about the process by reading the Surrogacy Blog, downloading the free Surrogacy Handbook, and listening to the Surrogacy Podcast.

If there is ever a silver lining to an awful surrogacy story, it is the lessons that we can learn from it. If we are going to pursue surrogacy, whether overseas or within Australia, we need to make informed decisions that promote the best interests of the child, the welfare of the women who are surrogates, and that protect the interests of vulnerable intended parents.

Most parents, and particularly those who have had a tough time having children, will know the feeling of ‘baby lust’, of wanting to do anything it will take to have a baby. I know that feeling, I’ve experienced it myself, and I am sympathetic to those feelings. But having children should not be at all costs, and particularly not at the costs of the interests of the child, or the welfare of the surrogate or any donors. It should not be at the cost of your own mental health or well-being.

So what am I talking about when I say that surrogacy and donor-conception should be ‘best practice’? What is ‘best practice’ and how do we ensure that we’re aiming for it and upholding best practice when pursuing donor conception and surrogacy?

Firstly, and above all else, way up on the rooftops, should be the child’s best interests. This is not a made-up concept, it is enshrined in international and Australian law, and should be the thing that you refer to in all your decision-making when considering options for conception, donor-conception, and surrogacy. You might like to have a look at the Convention on the Rights of the Child which provides some guidance. In Australia we consider that a child should be protected from harm (abuse, neglect, or violence) and that they should have a meaningful relationship with their parents. Children deserve protection as is in his or her best interests and is needed by him or her by reason of being a child. A child’s interests include relationships with other important people in their lives, and a right to have their identity protected.

When considering donor conception, we know that anonymous donation is not in the donor-conceived person’s best interests. Gone are the days when clinics would tell infertile couples not to tell their children they were donor-conceived, or recruit donors on the basis that they would always be anonymous. When someone makes a donation through a clinic, they are informed that their donation cannot be anonymous and that any donor-conceived person will be able to access information about them when they turn 18. We place the interests of the donor-conceived person above that of the adults who made decisions about their creation.

It can be difficult to consider what our future, hypothetical children might think of their conception, and the decisions we made before they existed. It might be useful to consider how you would feel, if you were to discover you that were donor-conceived, and your donor’s details were not available to you. Or that your donor lives in another country and is only known by their physical descriptors. Or, that you have any number of donor half-siblings across the world. If you would like to know how donor-conceived people feel about their stories, have a look at We Are Donor Conceived. Some of the stories are confronting and emotional, but they give you an insight into how your child might feel in the future. We also know that donor conception is no longer anonymous, with the availability of consumer DNA testing.

Surrogacy is not without its critics. Some people consider that all surrogacy, commercial or altruistic, should be outlawed. You can read my thoughts on their common criticisms and think about your own value systems when faced with these criticisms.

And what about the welfare of the surrogates? Well, this is controversial because there are arguments for and against commercial surrogacy, and even people who are against altruistic surrogacy, on the basis that it exploits women. Some things to consider, when engaging in commercial surrogacy, include:

  1. Whether the surrogate is financially secure. If she is not, or if her primary motivation for being a surrogate is for financial reward, then consider whether you can be sure that she’s not vulnerable to being exploited. Many of the women in Ukraine and other countries are recruited on the basis that they need money, and therefore vulnerable to exploitation.
  2. Whether the surrogate speaks English and can communicate in English. There are cases of surrogates signing surrogacy contracts despite having little to no literacy. One way to ensure that she understand what she’s consenting to is to talk to her yourself – in English.
  3. Expect to have a relationship with the surrogate, and pursue an option where this is encouraged. Some surrogacy agencies overseas expect that the intended parents and surrogate won’t have a relationship at all – demand better, for you and your future baby. Unless you have direct contact with your surrogate, you cannot be certain of the information provided by the agency or clinic, and you cannot be certain that she is being looked after.
  4. Whether the surrogacy agreement provides for the surrogate to retain at least some bodily autonomy. Contracts that treat her like a commodity, that completely remove any autonomy, are exploitative and not in her interests or that of any child born through the arrangement.
  5. Pursue surrogacy in countries that have well-trodden, well-regulated frameworks that protect the rights of the child and surrogate. Read reviews from other intended parents, and do your research. If you are considering an option like Ukraine, for example, consider why it is in the headlines and whether there are other options that might be safer and more secure.
  6. Cheaper is not better. A fast, cheap way to a baby is not likely to be an ethical, safe way to create a family. If you are focused on the cheapest way to make a baby, you are taking significant risks with your family. I get it – surrogacy is expensive. But if you are committed to maintaining an ethical approach and supporting the interests of the baby and the surrogate, then it is worth the investment of time and money to get it right.
  7.  It’s really easy, and cheap, to create a website with fancy graphics that make promises of a baby (or two). Do not rely on the agencies or clinics to tell you the hard truths – why would they, when it might mean you go elsewhere? Do your research. Ask other intended parents about their experiences. Ask if the people referring you are making money from the referral. Don’t believe all the promises and glossy pictures.
  8. Regardless of which agency or clinic you are engaging with, you should consider what services they are offering, and ask questions to satisfy yourself that the service provided meets your expectations and needs.

You can research more about donor conception, including listening to Podcast episodes and reading blog posts about the different perspectives. In particular, I recommend listening to this episode with VARTA’s Kate Bourne, and this episode with donor recipient Gail Pascoe.

Intended parent (now parent) through surrogacy Costa, spoke to me about his surrogacy experience and how he managed to maintain his integrity and uphold his values, for the benefit of his daughter.

Read about international surrogacy options for Australian intended parents, and beware those who take kickbacks for facilitating overseas surrogacy deals.

Sarah has written a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, which is the only guide to surrogacy in Australia.

You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Surrogacy Podcast. You can also book in for a consult with me below, and check out the legal services I provide.

Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF mum, an egg donor and a traditional surrogate, and I delivered a baby for two dads in 2018

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

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