Surrogacy has been a headline again this week, with Foreign Correspondent covering 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.

If there is ever a silver lining to an awful surrogacy story, it is the lessons that we can learn from it. If we’re going to pursue surrogacy, whether it’s 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 protects 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 it, I’ve experienced it, and I’m 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 also shouldn’t 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 both their parents (who are parents and how many is a discussion for another day). Furthermore, a child’s interests include relationships with other important people in their lives, and a right to have their identity protected.

When it comes to donor conception, what we know is 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, when we are in the baby lust head space, 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 were donor-conceived, and that 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. This post also provides some insight.

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 are recruited on the basis that they are desperate for money and therefore vulnerable to exploitation.
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  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.
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  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.
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  4. Whether the surrogacy agreement provides for the surrogate to retain at least some bodily autonomy. Contract that treat her like a commodity that completely removes any autonomy is exploitative and not in her interests or that of any child born through the arrangement.
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  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.
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  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.
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  7.  It’s really easy, and cheap, to create a website with fancy graphics and makes 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.

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.

If you are exploring overseas surrogacy, read this, and beware those who take kickbacks for facilitating overseas surrogacy deals.

Hi! I’m Sarah Jefford. I’m a surrogacy, fertility and family lawyer. I’m also an IVF Mum, an egg donor and a traditional surrogate, and I delivered a baby for her 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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