Victorian Surrogacy Law Reform: We Made It Happen!

Since writing this post, some of the Recommendations have been implemented by the government and the Department of Health and Human Services. Further amendments are being implemented in a staged approach by the Andrews Government.

The Age covered the reforms in this article, in which I was interviewed, in December 2019.

I’m a law nerd really, so the idea of law reform and particularly those laws that affect me, is pretty exciting. The Victorian Review of the Assisted Reproductive Treatment Act, has finally concluded, and the Report released this week. Recommendations 14 and 63-73 of the Report focus on surrogacy.

It has been exciting to engage with clinics, VARTA, academics, consumers and other stakeholders including Rainbow Families Victoria to improve our IVF and surrogacy laws. I was also privileged to be able to give a very personal perspective, not only as an IVF mum, egg donor and surrogate, but as a traditional surrogate, pushing to get a Parentage Order at the same time the Review was being conducted. We became the first traditional surrogacy arrangement in Victoria to obtain a Parentage Order after a mistake was made in the legislation resulting in TS arrangements being in legal limbo. We were excited a few weeks ago to see a Bill introduced into Victorian Parliament to fix that particular issue.

A lot of the recommendations in the Report pertain to the improvement of treatment and care for fertility patients, to ensure that fertility treatment is provided with informed consent and patient-centred care. There are also recommendations for improvements to the inclusivity of the laws and treatments, to ensure that the LGBTQI+ community feels included and respected.

The recommendations regarding surrogacy laws are detailed below:

Recommendation 14: Surrogate’s Reimbursable Expenses

Victoria has a reputation within the surrogacy community for not permitting the reimbursement of surrogate’s reasonable expenses, including lost income, maternity wear and childcare. The Review recommends that this be changed, such that a surrogate’s reimbursable expenses include:

1. 1. Medical costs for the birth mother (including costs incurred prior to conception, during pregnancy and after delivery) or a child born as a result of a surrogacy arrangement where these are not payable by Medicare or private health insurance
   2. A premium payable for health, disability or life insurance that would not otherwise have been obtained
   3. Counselling expenses
   4. Reasonable legal costs for the birth mother and their partner (if any)
   5. Lost earnings because of leave taken — (i) for a period of not more than two months during which a birth has happened or was expected to happen; or (ii) for any other period during which the surrogate was unable to work on medical grounds as a result of the surrogacy.

Recommendation 64: Traditional Surrogacy 

Traditional surrogacy is legal in Victoria, but not through an IVF clinic. While clinics in other States are often not keen to facilitate traditional surrogacy arrangements, in Victoria it’s actually illegal for them to do so. And because making it illegal for a clinic to do it doesn’t stop people from doing it at home (you don’t always need clinic to make a baby!), there has been a lot of misinformed advice whispered in Victorian clinics – that *traditional surrogacy is illegal* even though it’s not.

The Reviewers heard from several traditional surrogates, including myself, and have recommended that traditional surrogacy arrangements be treated the same as gestational surrogacy arrangements. Parties to a traditional surrogacy arrangement will still be able to conceive via home insemination; the recommendation is such that all arrangements will be scrutinised by the Patient Review Panel. This might seem a bit harsh, particularly for those of us that have engaged in traditional surrogacy and enjoyed not meeting with the PRP. However, it is in the interests of the child, the surrogate and the intended parents that everyone involved is offered the right amount of support and information and PRP oversight will hopefully facilitate that.

Recommendation 66: Surrogacy counsellors

Currently only counsellors employed at an ART clinic can provide surrogacy counselling. This is neither patient-centred, nor does it allow for consumers to choose their counsellor. It is recommended that the Act be amended to state that counselling in respect of surrogacy arrangements must be provided by an ‘appropriately qualified counsellor’. Such a qualification is likely to be a counsellor registered with ANZICA. They would not need to be employed or registered with a clinic. I take personal pride in seeing this recommendation, and the law reform which followed, as it directly impacted my own surrogacy arrangement.

Recommendation 68: Written Surrogacy Agreements

Victoria is one of the only States that does not require a surrogacy agreement to be in writing. The Review recommends that surrogacy agreements be in writing, with specific provisions included.

Recommendation 73: Advertising for a Surrogate 

It is illegal to publish anything that indicates a need for a surrogate or that you would be willing to enter into a surrogacy arrangement. The Review recommends that advertising be permitted, with strict guidelines as to what is appropriate in an advertisement.

Patient Review Panel 

It is pleasing to see that feedback about the conduct of the Patient Review Panel was included in the Review. The Review has recommended that the Patient Review Panel review its guidance and policies on the approval of surrogacy arrangements in Victoria to avoid an unnecessarily intrusive or investigative approach to the process. The Patient Review Panel should also provide more user-friendly information about the approval process to better prepare parties to a proposed surrogacy arrangement. We are waiting on new Guidance Notes to be released by the Patient Review Panel this month.

You can read the full Report here.

Where to now?

Well, the government promised that they would implement the recommendations of the Review, so now we wait! Fingers-crossed the new laws will come into existence within the next year. Watch this space.

Congratulations and thank you to everyone who took the time to contribute to the Review!

If you are interested in surrogacy laws in other States, you can find posts about each State here.

If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.

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