Conflicting interests are prevalent in the surrogacy industry. Intended parents are interested in having a baby, and will spend huge amounts of money to pursue that goal. Agencies, clinics, consultants and brokers are happy to help lighten their wallets, often by lining their own pockets. Surrogates, and the children born have their own needs and interests that may compete with the intended parents and the industry businesses.
It’s important for anyone pursuing surrogacy, in Australia and overseas, to consider the conflicting interests that arise between themselves and anyone they’re engaging with. Not everyone has your best interests at heart.
It’s very easy to create a glossy website with cute baby photos and make promises of a baby (or babies) for anyone willing to sign up and fork out the funds. It’s not so easy to guarantee a proper regulatory framework to support the surrogacy arrangement, or high level healthcare for the surrogate and baby, or a smooth exit process to return to Australia with a newborn. Multiple incidents have occurred over the years of intended parents spending their life savings for surrogacy overseas, based on recommendations from Australian service providers, only to find out that their destination country does not recognise them as the parents of their newborn – or worse, has criminalised surrogacy.
Agencies in some countries will refer the intended parents for legal advice, with one of their own lawyers. This is a conflict of interest, which in Australia would be prohibited. A lawyer providing services to an agency or clinic cannot also be providing advice to intended parents or a surrogate. Lawyers must be independent of any other party, such that they can only provide legal advice to one party, or one side of an agreement.
Other conflicting interests arise when someone is attending events, sponsoring surrogacy seminars, or holds positions in surrogacy organisations. Quid pro quos are common in the surrogacy field – cross-referrals between people, not declaring the conflicting interests to the intended parents.
Take, for example, someone who sponsors events to showcase their business, and in exchange receives referrals from the event organisers. If the people being referred are not aware of the quid pro quo between the organisations, they may not realise that this conflicts with their own interests, or that money is changing hands at their expense.
Professionals need to manage their interests. Someone sitting on a Board of Directors cannot make a profit or receive business from the organisation they are serving as a board member. This is a conflict of interest and breaches regulations and threatens good governance. It is one reason why I removed myself as a Board Director from Surrogacy Australia. I could not simultaneously sit on the Board, and receive referrals for legal advice from Surrogacy Australia.
As a lawyer, I cannot provide legal advice to the parties to a surrogacy arrangement, and provide legal advice to an IVF clinic that might conflict with the interests of my other clients.
Sadly, the surrogacy industry is poorly regulated in Australia, leaving intended parents particularly vulnerable to exploitation. Agencies and service providers offering surrogacy here and overseas are not subject to the same standards as counsellors or lawyers. There are no codes of conduct or regulatory frameworks that scrutinise agencies or service providers. Reform in this area is needed to address the exploitation of intended parents and surrogates.
The surrogacy process in Australia requires two lawyers, independent of each other – one for the intended parents, and one for the surrogate and her partner. While everyone generally likes each other and works toward a shared goal, the lawyers need to support the parties to understand their (sometimes) conflicting interests and ensure the legal advice they receive is independent.
If you are engaging with a surrogacy service provider, be sure to check whether they have any conflicting interests, with you or other services. Check that services provided to you are not benefiting others at your expense, and that everyone supporting your surrogacy journey has your best interests at heart.
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.
