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Will the Surrogate Keep the Baby?

By |2019-02-20T06:37:08+00:00February 20th, 2019|Categories: altruistic surrogacy, Australia, Blog, parentage order|

One of the first questions asked by intended parents considering surrogacy in Australia is “What if she wants to keep the baby?”

And one of the first questions asked by a surrogate and her partner is “What if they don’t take the baby?”

You may laugh at the irony of those two questions, and certainly many surrogates will scoff at the idea that they want to keep the baby. The fact is, if an intended parent is anxious about the prospect of their surrogate refusing to hand over the baby, there’s not much that can give them 100% certainty that it won’t happen.

So here’s some facts that might help. And whilst they are meant to help, they are in no way meant to diminish the intended parent understandable concerns.

  1. Most surrogates can conceive and carry a baby with their partner without medical or legal intervention, let alone blood tests, invasive physical examinations, police checks, counselling or involving another couple in their family planning. We don’t want to have any baby, we want to have your baby and give it to you.  This might seem a strange idea – why would anyone want to have a baby for someone else? Everything in altruistic surrogacy comes back to the intentions of everyone involved. If the baby was conceived with the intention that it is to be raised and loved by the intended parents, it would feel very strange to consider raising the baby ourselves. In fact, it could feel like grief. As surrogates, we become entirely invested in you becoming parents. If that expectation is not fulfilled, we can grieve for it. So, the idea that we would keep a baby we never intended keeping feels absurd. And this applies to traditional and gestational surrogates – even if we have a genetic connection to the baby, we never intended bringing it home. It’s yours – you can have it.
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  2. Yes, your baby is gorgeous and delightful and goodness that newborn smell is intoxicating! And still, we don’t want to take it home with us. Some of us are even willing to breastfeed and have skin-to-skin contact with the baby after the birth – and hand it over without any problems. Hormones are amazing, pregnancy and birth is amazing. Still, we don’t want your baby. Our body might react to the baby’s presence, and so it should – we carried baby for 9 months, it would be strange if we didn’t respond. But here’s the thing – the human brain is complex, and humans are capable of complex feelings and thoughts. I can simultaneously love my children and enjoy the time they are in school. Likewise, we can love your baby and have a physical reaction to baby – and still not want to raise it and take it home with us. Actually, we’d rather see you doing all the parenting, because that’s what we always intended.
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  3. Most people have an idea of what their family will look like. It changes over time, of course. But intended parents will understand the desire to have children is partly to do with how you see your future, and your expectations of raising children (2 or 3?) and when that might happen. Likewise, surrogates also have ideas about what their family looks like. For me, I was adamant that two kids was right for us. We considered adding a third, but it didn’t feel right. Our car fits two kids comfortably, we can holiday with two kids easily, we have goals that include two kids – and not three, or four. So, imagine if that image of family changes because another child arrives, unexpectedly. For me, the idea of a third child was out of the question. The possibility of having to raise surro-baby in our family was terrifying, and this possibility often causes anxiety for surrogates and their partners.  I remember cuddles with newborn surro-baby made me anxious – I hadn’t planned on looking after a newborn! Why did they keep handing her to me?!
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  4. But what about the law? I hear you ask. You’re right – Australian laws provide that surrogacy arrangements are not enforceable. At birth, the surrogate and her partner are the baby’s legal parents – for a bit, anyway. If the surrogate decides to keep the baby, by law there is nothing the intended parents can do to enforce the surrogacy agreement. They can go to the family courts, where the decision of where baby lives would be about the baby’s best interests, not based on the surrogacy agreement. Why is this? Well, because you can’t have a contract on a baby (that’s akin to child trafficking), and you can’t have a contract on a woman’s body. These are two fundamental legal principles that are maintained and are unlikely to change any time soon. So, I guess she could keep the baby…right? Do you know the statistics for a surrogate keeping the baby in Australia, since decent surrogacy laws were introduced (10 years ago in most States)? 0%. Nil. Zero. Certainly, there have been some negative outcomes where the surrogate and intended parents have not been friends after the birth…and still, the surrogate has not tried to keep the baby.
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    What’s more, in commercial surrogacy arrangements in the US, the chances of the surrogate keeping the baby are 5 times less likely than the intended parents refusing to take the baby. Think that over for a moment. Intended parents are more likely to refuse to take the baby than a surrogate is likely to want to keep it. So, who takes the biggest risk?
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  5. Then there’s the Birth Certificate. When baby is born, the surrogate and her partner are listed as the legal parents on the original Birth Certificate. That might feel surreal – trust me, it’s weirder for the surrogate and her partner to see their names listed as parents of your child. To change the Birth Certificate, the intended parents need to apply for a Parentage Order, which transfers parentage from the birth parents to the intended parents. And then, a fresh Birth Certificate is issued with the intended parents listed. You might not agree with the process, or the reasons for it. But given the ‘risks,’ versus the benefits of an altruistic, domestic surrogacy arrangement, a Birth Certificate shouldn’t be your main concern. In fact, you could see it as the ultimate recognition of the woman who brought your baby into the world, and a worthy part of your child’s story. After all, it’s their story too.

If you are an intended parent and are reading this, and still feeling anxious about the prospect of a surrogate keeping the baby, that’s ok. But it is something you need to work through before going ahead. There are overseas options that might suit you better. If you do pursue altruistic surrogacy in Australia, you need to work on building trust with your surrogate and her partner, so you can feel comfortable going ahead with her. Address the anxiety in counselling as well. If you are worrying that she might keep the baby, you should not be progressing the relationship any further. Trust is fundamental to altruistic surrogacy. And by trusting, you open yourself up to some amazing possibilities in the relationship and sharing the experience together.

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 promote positive, empowered altruistic surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

You can get in touch with me through the options below.

Contact Me

PO Box 366, Batman VIC 3058

Phone: 0400481703

Frequently Asked Questions

By |2019-02-27T06:00:55+00:00January 2nd, 2019|Categories: altruistic surrogacy, Australia, Blog, costs of surrogacy, finding a surrogate, ivf, parentage order, surrogacy process, traditional surrogacy|

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 promote positive, empowered altruistic surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

You can get in touch with me through the options below.

Contact Me

PO Box 366, Batman VIC 3058

Phone: 0400481703

Book an initial 30 minute consult

Click here to book!

DIY Parentage Order: You Can Do It!

By |2019-01-18T20:01:55+00:00December 27th, 2018|Categories: Australia, Blog, laws, parentage order, surrogacy process|

By the time you have your baby in your arms, you’ve spent considerable money on IVF, legal expenses, counselling and pregnancy and birth expenses for your surrogate…not to mention decorating the nursery and buying size 0000 onesies! I imagine you’re probably a bit worn out, financially, and more than ready to settle down with your new family.

But what about the Parentage Order?! You need to apply for the Parentage Order, to transfer parentage from the surrogate and her partner to the intended parents, and to get the Birth Certificate re-issued with your names listed as parents. Usually that means more lawyer fees… but did you know that there’s no requirement to have a lawyer represent you for your Parentage Order? You can choose to do it all yourself! Read below for my tips on preparing your own Parentage Order application, and how you can get the help you need without spending a fortune.

In each State, there are requirements that you must meet before applying for a Parentage Order. You should have a look at the law that applies in your State:

New South Wales: Surrogacy Act 2010

Queensland: Surrogacy Act 2010

Victoria: Assisted Reproductive Treatment Act 2008

South Australia: Family Relationships Act 1974

Tasmania: Surrogacy Act 2012

ACT: Parentage Act 2004

Western Australia: Surrogacy Act 2008

Note that legislation is often updated, and surrogacy law reform is expected in WA, SA, Victoria and NT in the coming year or two. If you’re looking for the most up-to-date legislation, you can usually find it by googling the name of the law and the State – for example ‘surrogacy act nsw.’

If you are in Victoria, you are extra lucky because there is a DIY Parentage Order kit on the County Court website.

The documents required for the Application include:

  1. The Application. You should search the Court in your State for template forms, and call the Court Registry and ask them for assistance.
  2. An Affidavit from the Intended Parents;
  3. An Affidavit from the surrogate and her partner;
  4. A Certified Copy of the baby’s Birth Certificate;
  5. The Court filing fee (most States charge a fee, usually between $400 and $1,200).

The general criteria of a Parentage Order are listed within the legislation for each State – you should read the legislation and look for sections called ‘Application for Parentage Order’ and similar. In NSW, for example, you should pay attention to Division 4 – Preconditions to making a Parentage Order.  You will see that a Parentage Order requires certain preconditions to have been met – including that the parties obtained legal advice and had counselling about the arrangement, and evidence that it was altruistic and that the surrogate and her partner consent to the Order being made.

All of this might seem overwhelming, and that’s understandable. Remember that lawyers have been trained to read, analyse and apply legislation. If you would like to prepare the Application yourself, there are ways that you can do it, with a lawyer’s assistance, and without a large bill at the end.

I provide a DIY Parentage Order Legal Advice Package. It allows you to complete the Application yourself, and have me as your personal guide through the process. The Package includes:

  1. A 30-minute Skype Consult to advise you on the Application process and everything you need to get you started;
  2. A tailored DIY Parentage Order Tip Sheet, outlining the Application requirements in your State and what you need to do to complete your Application;
  3. Once you have completed the Application and Affidavits for your Application, I will read, review and provide advice for any amendments, and to get you ready to submit your Application to the Court.

If you would like to know more about the DIY Package, you can contact me any time in the lead up to your baby’s birth, or shortly afterwards. No matter where you are in Australia, I can help you prepare your own Parentage Order.

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 promote positive, empowered altruistic surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

You can get in touch with me through the options below.

Contact Me

PO Box 366, Batman VIC 3058

Phone: 0400481703

Applying for a Parentage Order

By |2019-01-09T02:53:23+00:00November 15th, 2018|Categories: altruistic surrogacy, Australia, Blog, interstate surrogacy, laws, parentage order, parenthood, surrogacy, surrogacy process, surrogate, written agreements|

After a baby is born through an Australian surrogacy arrangement, a Parentage Order is required to transfer parentage from the surrogate and her partner to the intended parents.

When the baby is born, the surrogate and her partner register the baby’s birth in the State where the baby is born. They can register the baby with a name chosen by the intended parents.

The surrogate and her partner are listed as the baby’s parents on the birth certificate.

Once the birth certificate is issued, the intended parents must apply for a Parentage Order (also called a Substitute Parentage Order). They apply to a Court in the State where they live. The purpose of a Parentage Order is to transfer parentage from the surrogate and her partner, to the intended parents. This has the effect of providing an Order that recognises the surrogacy arrangement, and who the true parents are. The Order also tells the Registry of Births Deaths and Marriages in the surrogate’s State, to re-issue the birth certificate with the parents listed, instead of the surrogate and her partner.

For the Court to grant a Parentage Order, the intended parents will need to provide evidence of the surrogacy arrangement, and that the surrogate and her partner have relinquished care of the baby to the parents. This is usually provided by way of Affidavits from each of the intended parents and the surrogate and her partner.

The Court will need to see evidence that the parties received legal advice and counselling prior to the pregnancy. In some States, post-surrogacy counselling is also a requirement of the Parentage Order.

You should refer to the legislation in the state where the intended parents live to understand the requirements that apply to you.

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 promote positive, empowered altruistic surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

You can get in touch with me through the options below.

Contact Me

PO Box 366, Batman VIC 3058

Phone: 0400481703

Parenting Orders and Parentage Orders

By |2018-12-29T01:21:33+00:00November 5th, 2018|Categories: altruistic surrogacy, America, Australia, Blog, Canada, laws, overseas, parentage order, Ukraine|

Parenting Orders are often made when parents are separated and need to formalise the arrangements for where the children will live and who they will spend time with. These are made in the family law courts.

Parentage Orders are made to transfer parentage from a surrogate and her partner, to the intended parents. These are made in State Courts. These Orders provide for the Birth Certificate to be changed, removing the surrogate and her partner, and replacing their names with those of the intended parents.

In Australian domestic surrogacy arrangements, the appropriate Orders are Parentage Orders.

In some international surrogacy cases, intended parents may choose to obtain Parenting Orders to recognise both parents as having parental responsibility for the child, once they return to Australia. This is generally not necessary where both the intended parents are already listed on the Birth Certificate.

Click here to see a Comparison of Parentage and Parenting Orders.

You may be told that you must have a Parenting Order if you had a child through international surrogacy. This is often not the case. Parenting Orders can only be obtained if you have evidence of the surrogacy arrangement, and can provide evidence that the surrogate and her partner consented to the Order being made. The Parenting Order application process can be complex, time-consuming and expensive – if you don’t need to do it, why would you bother? But if only one (or neither) of the Intended Parents is listed on the Birth Certificate, Parenting Orders can provide acknowledgement that the intended parents have parental responsibility of the child (and that the surrogate does not), and can assist with accessing services such as Medicare and Centrelink.

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 promote positive, empowered altruistic surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

You can get in touch with me through the options below.

Contact Me

PO Box 366, Batman VIC 3058

Phone: 0400481703

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This Sliding Bar can be switched on or off in theme options, and can take any widget you throw at it or even fill it with your custom HTML Code. Its perfect for grabbing the attention of your viewers. Choose between 1, 2, 3 or 4 columns, set the background color, widget divider color, activate transparency, a top border or fully disable it on desktop and mobile.