We hear the pitter patter of tiny feet on the horizon….

Being a Surrogacy Lawyer is probably one of the best jobs in the world. No matter which party you are acting for, whether it be the surrogate and her partner or the intended parents, you have the honour of working together as a team to achieve the most wonderful of goals on this earth… making a family.

As a parent myself to three children I couldn’t imagine being without, it is an absolute thrill to be part of something so special and something, really, so personal.

One of our clients recently received the news that all involved were waiting with baited breath to hear… two blue lines, a baby is on the way! To get to this point though, there were a lot of ducks to line up, leaving aside for the moment the matter of getting through the fertility clinic processes to get to even transferring the embryo.

There are a lot of things to consider, a lot of advice to hear and digest, counselling to be organised, documents to be drafted, group discussions to be had. It doesn’t mean that this has to be a necessarily long process, but there are a number of steps that must be followed to ensure that it all ends with a Parentage Order. The order means that the Intended Parents become the child’s parents and the Birth Parents stop being the child’s parents.

For most people, the option of surrogacy comes at the end of what is a very long journey of trying unsuccessfully to conceive and hitting brick wall after brick wall. To find that precious person who is willing, out of the goodness of their heart, to provide such a special gift of being a surrogate is an amazing thing. Not to mention the surrogate’s partner and family, all on board to support her in this altruistic act.

The lawyers involved should work together to make sure that their clients are protected, but also work in a way that creates and nurtures an atmosphere of trust and co-operation. After all, many of the steps in the surrogacy process are not enforceable. Without these elements, the goal may be out of reach.

If you are considering surrogacy as an option, contact Daykin Family Law today for a reduced fixed fee initial consultation to discuss the process and how we can help you. We have surrogacy matters in three States and can assist even if you are from outside of Queensland. We offer phone and Skype consultations to suit your schedule.

Considering surrogacy?

As a family lawyer, I think it is important to have as much knowledge as possible about what your clients are going through. This helps not just with knowing what advice to give and when, but to be aware of the other service providers out there who can do certain things a lot better than us lawyers.

In the case of surrogacy, this means ensuring that potential surrogates are put in touch with reputable, experienced professionals who are able to guide them through the process from starting to think about this thing called surrogacy, to making the dream a reality.

I recently had the pleasure of visiting the Monash IVF clinic at the Wesley Hospital, Toowong, herein Brisbane, and meeting Nursing Team Leader, Margie Dangerfield.

Monash IVF, like some other clinics in South-East Queensland, has an involved and detailed surrogacy process with best practices at the heart of what they do.

As part of the assessment process at Monash IVF, potential surrogates meet with the Surrogacy/Nurse Co-ordinators first to gather general information to start the process. Patients progress towards all of their relevant information going before the in-house Patient Review Panel. This process alone, before any treatment starts, can take anywhere between about 6 months to 1 year.

The assessment process also includes an appointment with a Fertility Specialist to assess the intended parent(s) and the surrogate, explore options and whether surrogacy is the preferred treatment choice. The surrogate is then referred to an Obstetrician for review and the intended parent(s) may be referred to a Geneticist. Medical testing for the donors is also carried out.

After the police checks and child protection order checks are completed, the next step is to meet with the Monash IVF Counsellor. This is a vitally important step at this stage and the parties will continue to meet with this counsellor throughout. Down the track, the parties must have independent counselling/psychological testing with another person to satisfy the Queensland legislation.

Taking a collaborative approach, the Infertility Specialist, Counsellor and Nurse at Monash IVF all meet to discuss the application, and ensure that all criteria are met.

Then, if advice has not already been sought, enter the lawyers. Under the Surrogacy Act 2010 (Qld), all parties to a surrogacy arrangement must obtain independent legal advice before the surrogacy arrangement is made. There is a lot of information to cover, and many things that potential surrogates and their partner, and intended parents, need to be aware of. If all of the right boxes are not ticked, then the Court may not make a parentage order formalising the arrangement.

The lawyers also prepare a surrogacy arrangement which is required under the Act to be put in writing between the parties and signed by them. Whilst this agreement is not binding, some clinics, such as Monash IVF, require this to be in place prior to treatment commencing. This is important because the agreement must be entered into after the parties have received independent legal advice and counselling, but before the child is conceived.

Then the clinic and the parties get on with the business of making miracles. Many things can go wrong of course, and it is important for all parties to consider the “what if’s” before they occur. Better yet, any shared understandings should be documented in the surrogacy agreement.

Fast forward past the labour and those very early sleepless nights, the parties must approach the Court for a parentage order between 28 days and 6 months after the baby is born to formalise the arrangement (unless the Court gives leave otherwise).

The process for obtaining parentage orders should be managed by a qualified legal practitioner, to ensure that all of the ‘t’s are crossed and the ‘i’s are dotted. This includes filing a number of documents and Affidavits, such as:

  • A copy of the child’s birth certificate
  • A copy of the surrogacy arrangement
  • Detailed affidavits by all parties
  • An affidavit by each of the parties’ lawyers
  • An affidavit by the counsellor who gave the parties counselling before the surrogacy arrangement was made (this can be a counsellor from your clinic as long as they are appropriately qualified, such as the counsellors at Monash IVF)
  • An affidavit by the independent and appropriately qualified counsellor who interviewed the parties for the purposes of the court application. They must also prepare and verify a surrogacy guidance report
  • For each intended parent who is a woman, an affidavit from an appropriately qualified medical practitioner verifying a report given by that practitioner as to why that woman is an eligible woman under the Act (ie. unable to conceive or some other relevant medical grounds)

The process from start to finish can be time consuming and draining in a lot of ways, but no doubt very well worth it. The internal regulations between assisted fertility clinics with respect to surrogacy can vary from clinic to clinic and you should take your time becoming informed about the different services and processes that each clinic offers and has.

Likewise with lawyers, we all have different skill sets which are more suited to some types of matters more than others. I see it as vitally important that surrogacy matters are handled with extra special care due to the different factors at play in reaching an arrangement where someone is willing to provide such a special gift to another person or couple out of the kindness of their heart. As a collaboratively trained lawyer, my approach is to work in tandem with other legal and health professionals and clients alike to reach a common goal, ensuring that my clients’ interests are protected at each stage.

In South-East Queensland, there are a number of assisted fertility clinics that provide services for surrogacy arrangements and I encourage you to make contact with the Nurses there like Margie to explore your options. I wish you the best of luck on your journey.