The law surrounding children, adoption, parentage and surrogacy is complex. There are several legislative instruments that cover children, and the Family Law Act dedicates almost 200 pages to clauses regarding children’s issues. There’s also many cases that provide some insight into how the Courts view issues of parentage and surrogacy, and what is to be considered when determining a child’s best interests.
People often ask why they need to involve lawyers in their surrogacy arrangement. It’s a good question, given that surrogacy agreements, even if they are in writing, are not enforceable. Whilst making a baby is an emotional, human, and sometimes medical process, surrogacy is much more complex and involves a legal process. Transferring parentage from birth parents to intended parents is not a simple matter of a private agreement. In cases where the parties decide to make a baby and hand it over to other people to raise, there is a risk that it can be seen as an informal adoption (at best) and as human trafficking (at worst).
There are instances where a woman has offered to be a surrogate for people she met online, and offered to do it cheap and easy without involving lawyers. The question has to be asked – what is a surrogate’s motivation for avoiding the counselling and the legal process? If she is looking for ‘cheap’ or ‘easy,’ her motivations may not be genuine, and intended parents take significant risks in progressing the arrangement. I would encourage anyone pursuing an arrangement that is ‘off-grid’ and avoiding lawyers and counsellors to follow their gut, understand the risks at stake, and consider the story you will tell your future child about their conception. If there are red flags flying, it is best to back away.
A genuine surrogacy arrangement follows a similar process in each State. There are criteria that you need to meet, regardless of who is involved in the arrangement or whether it’s gestational or traditional surrogacy. The surrogacy arrangement must be a pre-conception arrangement – calling it a surrogacy arrangement after conception doesn’t make it surrogacy. The parties need to participate in pre-conception counselling and obtain legal advice. In most States, there needs to be a pre-conception written agreement.
For gestational surrogacy, you can expect that an IVF clinic will not proceed with the arrangement unless you have provided them with evidence that you have received legal advice and counselling.
So, what are the consequences of not following the process of a legal surrogacy arrangement? I’ve had a few cases which do not tick the boxes, and there are a number of consequences you should be aware of:
- The Birth Certificate cannot be changed. The birth mother will remain on the child’s birth certificate. Only a Parentage Order can provide for the change of birth certificate. Unless the criteria of a surrogacy arrangement are met, the Birth Certificate cannot be changed.
- Not having a Birth Certificate which lists the intended parents child can lead to problems with Centrelink, Medicare, overseas travel, passports and enrolling the child in childcare and school. The intended parents may need to rely on the birth parents to sign any documents they need to exercise parental responsibility for the child. There also risks that the legal parents – those named on the birth certificate – will be liable for child support payments.
- Whilst the intention of the parties might have been to save money on lawyers (and counsellors) the end result may be more expense on lawyers and legal processes. If the intended parents wish, or are forced to obtain formal parental responsibility (which is sometimes referred to as ‘custody’), then the legal process to obtain such an Order would likely be much more expensive than if the parties had done the surrogacy legals before conception. The timeframe too, for obtaining Parenting Orders (as opposed to Parentage Orders, which are relatively easy) can be many months and several court hearings.
- There is a risk the authorities may become involved with the family, and scrutinise why a child is being raised away from their birth family. This is a very real risk, and I have seen this play out in several cases. The child protection authorities have a mandate to ensure that children are safe and protected – if it comes to their attention that the birth parents are leaving their child with another family, it can look like abandonment, or neglect, and worthy of investigation. Unless there is a surrogacy arrangement in place, the child protection authorities have the power to be involved in the family.
- The biggest difference between an arrangement that ticks the boxes of a formal surrogacy arrangement and one that doesn’t, is how the Courts view the arrangement and the parties. A surrogacy arrangement is generally dealt with in the State courts, and as long as the parties have satisfied the criteria for a Parentage Order, it will be made and the Birth Certificate changed. The court hearing (where there is one) is ceremonial and celebratory, and the Judge commends the parties on their love and commitment to the child.Where an arrangement has not ‘ticked the boxes’ of surrogacy, the Family Court can become involved and that court does not view such arrangements in the same light. Questions will be asked about whether the arrangement is in the child’s best interests. The arrangement will be scrutinised not as an arrangement of love between the parties, but as a Judge said in one of my cases – ‘the commodification of women and children.’ Questions will be asked as to whether there was an exchange of money between the parties.
You might be thinking that engaging in an informal surrogacy arrangement, avoiding lawyers and counsellors, is an easier option. After all, you all trust each other, right? The laws, however, are not there to make life difficult for you. They are primarily there to protect the rights of children, and to ensure that women are not exploited, and to protect all the parties involved. And whilst there might be a lot of love and trust between the parties (or maybe it’s just a woman on the internet promising the world), the courts are full of people who also used to have loving and trusting relationships, arguing over what is in their child’s best interests.
My advice is that getting sound legal advice about your arrangement – surrogacy, adoption, co-parenting or donor arrangement, is worth the investment. Family law is still evolving, and each situation requires a unique approach. Investing in getting the right advice – before conception – is worth it just to know that your future child won’t thank you if you cut corners.