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.

ABC News story: Surrogacy & the NT

I was interviewed recently by ABC News about the work I am currently doing for Surrogacy Australia, as part of their Legal Committee, in drafting a Surrogacy Bill for the Northern Territory.

Click here to view the article up on today’s ABC News website: http://www.abc.net.au/news/2015-05-06/proposed-surrogacy-changes-would-make-paying-for-babies-illegal/6447464

Surrogacy Australia is a not-for-profit consumer association supporting research and advocacy in the field of surrogacy.  The organisation is dedicated to progressing the rights, social and legal status of Australians using surrogacy overseas and within Australia.

As it stands, there is no legislation currently in place in the Northern Territory regulating surrogacy, unlike every other State and Territory in Australia.  Whilst it may be seen as fertile ground for surrogates and intended parents to connect, given there are no prohibitions on advertising in the NT like other parts of Australia, it is difficult for people to access treatment for surrogacy in the NT.  Also, there is no legal mechanism there allowing for intended parents to obtain parentage orders after the baby is born, altering the birth certificate.

Surrogacy Australia advocates for the “moderate regulation” framework for surrogacy legislation currently followed by Queensland, NWS, the ACT, Tasmania and South Australia.  This involves a mandatory written agreement, counselling and legal advice for all involved and the availbility of parentage orders after the child is born.

The draft Bill will be sent to the Northern Territory this week.  Updates to follow once a response is received.

 

 

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.

 

Queensland Law Society Proctor Article – March 2015

Check out the cover of Queensland Law Society’s Proctor March 2015 magazine for my recent article on the legal side of the road less travelled to parenthood.

If you don’t have access to Proctor, you can read a full version of the article here: Proctor March 2015 Cover Article

Thank you to the Queensland Law Society for the opportunity.

The less travelled alternative to adoption & surrogacy

Cases over the last year in the news about overseas surrogacy nightmares has shocked and appalled many Australians, and no doubt people internationally, and brought to the fore not only issues with surrogacy but with adoption in general.

With inter country adoption processing times continuing to increase, and the proportions of infants adopted from overseas continuing to decline, Australians have long searched for other options to become parents to newborns. This is to maximise attachment between child and primary caregiver and provide for a seamless transition from birth mother to intended parents, as early as possible after birth.

The case of Gammy is a sad and stark reminder of the need for clear and agreed boundaries from the outset with any surrogacy agreement. All parties need to be fully informed about the legal and psychosocial implications of bringing a child into the world through surrogacy. For some couples however, the uncertainty involved with the surrogacy process and the varying regulations in place from State to State, can render surrogacy an implausible option for many.

I was involved in a matter where a couple had explored assisted reproductive technology, local adoption and intercountry adoption to add to their family. The couple chose to look closer to home in an effort to become parents to a child as soon as possible after birth. What started as a chance discussion with a long-time friend, my clients were introduced to a child under the age of 16 years who had fallen pregnant and was scared for her unborn child’s future.

Knowing she was not equipped to provide for the child, the teen actively looked for options whereby she could control the process of giving her child up and choose for herself the people who would raise her child. Private adoptions are illegal in Queensland and, as such, birth parents have no final say over who adopts their child.

Alternatives lie however in the Commonwealth family law jurisdiction. I crafted a bespoke process for my clients to obtain parenting orders for the teen’s child after the birth. This process addressed many of the requirements of the Queensland legislative surrogacy process and the Commonwealth legislative framework, ensuring that the health and wellbeing of the teen and her unborn child were the focal point of every step taken. For my clients’ part, their interests remained protected at each stage and they were able to make informed decisions from sound legal advice to control their legal obligations regardless of the outcome.

The process involved multiple reports by a qualified and experienced psychologist, adept to dealing with the surrogacy and family law processes. It also required open communication about the potential realities that could unfold as the pregnancy progressed and the birth day approached, and what lay beyond.

From the later stages of pregnancy to taking the child home from hospital, I assisted my clients in negotiating, agreeing and formalising a parenting arrangement whereby my clients were able to take care of the child within 18 hours of its birth. This enabled bonding to commence almost immediately and ensured all parties were supported in the lead up to obtaining Parenting Orders from the Family Court less than 4 months later.

Had the teen mother gone through the adoption process, she would have delegated final decision making power over her child’s future to a government department. What’s more, the child may have spent a period of time in foster care, unable to be immediately placed with its forever family and potentially placed with a number of primary caregivers in a short period of time.

Had the teen mother seen no other option apart from adoption, she may have felt pressured into parenting a child in less than ideal circumstances. This may have put her and the child at risk of entering the overburdened and under resourced child protection system and becoming another devastating statistic.

Society at large may not be aware of the family law options available for Australians to take responsibility for the care of children closer to home. Such options are outside of the highly regulated adoption process and avoid some of the unknown variables and State-based restrictions associated with surrogacy or caring for a child with often complex needs in the child protection system.

When parties approach the Family Court of Australia or the Federal Circuit Court of Australia for parenting orders of the kind sought by our clients, the paramount consideration for all judicial decision making in such cases is the best interests of the child. The Commonwealth legislative framework has a detailed pathway applied by all judicial officers to ensure that the child’s best interests are met as much as practicable, including the child’s physical, emotional and psychological needs.

As a matter of interest, it makes me question whether increased societal awareness about the alternatives to adoption, particularly within lower socio-economic groups, would lead to a decrease in the high numbers of children in the child protection system.

Surely, it must be a win-win for society to accept responsibility for children born into less than ideal situations to birth parents who know they cannot provide for their child. The option discussed above enables all parties to retain control over the outcome for children, within a framework where the child’s best interests are paramount.