Commercial surrogacy is illegal in Australia. Altruistic surrogacy arrangements are legal – that’s where the surrogate receives no material benefit, reward, payment or inducement in exchange for carrying a baby for someone else.
One of the first questions asked by surrogates and intended parents, is whether the intended parents can give gifts to their surrogate, or her family members, without compromising the surrogacy agreement or the Parentage Order application. And what sort of gifts might be ok, and what might be considered a reward or inducement? The answer is complex!
The legislation can be interpreted very broadly, such that even the gift of a massage voucher or a bunch of flowers could be seen as a material benefit or reward for the surrogate. So how do intended parents look after their surrogate, support her through any treatment and pregnancy, and show their appreciation without crossing over into illegal territory?
The laws are designed to prevent commercial arrangements, involving women who are inspired to be surrogates for promise of payment. The law is not designed to punish people who accept gifts of love, friendship, appreciation and support.
A good rule of thumb is to act as you would if you were to give a gift to any other friend. Gifts that are not cash, such as massage vouchers, flowers, ready-cooked meals, movie tickets and dinner vouchers are unlikely to be considered by any reasonable person as an inducement or reward for surrogacy. And surrogates are unlikely to be enticed to go through the challenges of pregnancy simply for the promise of a free movie ticket!
Cash deposits into a surrogate’s bank account are a bit trickier. In some States, not all, it is acceptable for the surrogate to be reimbursed for loss of wages due to the surrogacy treatment, pregnancy or birth and postnatal period. Loss of wages might be paid into the surrogate’s bank account in periodic or lump sum payments. If this applies to your arrangement, you should ensure that the amounts deposited correspond to evidence of the lost earnings, such as evidence of payslips or a record of reduced work hours.
For other reimbursements, such as the cost of prenatal supplements, or travel costs, consider direct payments to the clinic, or giving your surrogate a linked debit card that she can use to purchase pregnancy-related items.
So what about bigger gifts, or “push presents” (that’s a gift given to a woman to celebrate her having pushed out a baby!). Whilst a massage voucher might alleviate a pregnant woman’s sore back, it’s hardly an inducement to be a surrogate. What about bigger gifts, like electrical appliances, a holiday, or some nice jewelry? Again, the legislation is clear that surrogates should not receive material benefits or reward for being a surrogate. But is a gift of love and appreciation a reward, or inducement, or material benefit of surrogacy? You should exercise both caution and common sense. And if in doubt, get legal advice.
Intended parents worry that if they give any gifts to their surrogate could compromise the surrogacy arrangement and that the Court could refuse to make the parentage order. The laws provide that the Courts can refuse to make a parentage order if the arrangement looks to be a commercial transaction. And surrogates can be prosecuted if they have broken the law and received payment for being a surrogate. Some things to consider:
- The police are pretty busy with solving other crimes and don’t have time to worry too much about whether your surrogate received a spa package as a reward for carrying your baby;
- The Courts are most concerned with the baby’s best interests, and whether making the parentage order would be in the baby’s best interests. If all the criteria are met for a parentage order, the Courts are unlikely to refuse to make the Order simply because the surrogate received a gift from the intended parents.
- There have been no prosecutions that we are aware of, of a surrogate who accepted gifts from the intended parents.
If in doubt, you should contact your lawyer. Our advice: be kind, exercise common sense, and remember: if it looks like a commercial arrangement it probably is. If it looks like a gift of love and friendship, it probably is.