Surrogacy Q&A with Nicole Russell - Surrogacy Lawyer. When do we create embryos for use in a surrogacy arrangement? Can we select the gender of our embryo? What is the time limit to file an application for a Parentage Order? What if the Court refuses to grant our application for a Parentage Order?

It is a question often asked: How long do intended parents continue to pay surrogate’s expenses post birth? There is no hard and fast rule and depends entirely on the unique circumstances of each case. Generally, there are still plenty of expenses that occur during recovery in the fourth trimester.

Surrogacy Agreements – what to include in them? I talk a lot about surrogacy agreements and particularly, what to include in them. Read on to find out some things I like to cover.

If you have been tested for the DQ Alpha Gene match as part of your fertility testing, you will know that it can cause, what doctors call, a hostile uterus. Since I am definitely no doctor, I won’t attempt to explain the details further but it is safe to say IYKYK.....

The Fourth trimester is often very different for intended parents than the surrogate. As I reflected in my previous post, I felt on top of the world when my daughter was born! Notwithstanding this, the fourth trimester is an opportunity to get to know your baby and reflect on your amazing journey to parenthood. Here are some things that may arise that you are unprepared for as an intended parent.

But what about a surrogate; how does she feel during this period? Often, surrogates have children at home who need her attention and without a baby-in-tow, they may easily forget the physical and emotional marathon that their mother has just experienced as a surrogate). Her milk still comes in (unless medication is administered after birth to prevent it from doing so), her hormone levels go up and down, the baby blues set in (also very normal, and not to be confused with the surrogate wanting to keep the baby).

Recently, I had the pleasure of talking to Sarah-Jayne Duryea from Happy Minds Psychology over an Instagram live session and we discussed some of the common myths and misconceptions that we hear in our practices. Here is a snapshot of some of the topics we covered.

Firstly, private social media pages that are not accessible to the world at large, are generally a safe place for you to keep friends and family updated on your wishes to have a child. However, it is best to refrain from expressly stating that you are searching for a surrogate. Instead, consider words such as “we are exploring surrogacy”. In my experience, about 80% of my clients find their surrogates through openly sharing their wishes and challenges.

In most states of Australia, advertising for a surrogate is prohibited (except NSW where it is permitted so long as the advertisement was not paid for). “Advertising” may include simply publishing a statement to the effect that you are seeking a surrogate. This captures social media posts and media articles authored by a journalist or other third party.

In a recent post, we talked about ‘best practice’ international surrogacy arrangements. Largely, ‘best practice’ ensures that the surrogate mother is protected from imbalances of power and her bodily autonomy is recognised and respected. Find ‘Best practice’ arrangements in this blog post.

Many Australian couples undertake surrogacy internationally. The most common locations for Australians to undertake surrogacy are the US, Canada, Ukraine and Georgia. In an ideal world, all couples wishing to have a child would be able to do so at home in Australia with an Australian surrogate, however many people do not have someone in Australia who is prepared to be their surrogate.

Can my surrogate be interstate? Yes, she certainly can!! We specialise in interstate arrangements, and they generally run very smoothly (at least pre COVID. Last year was particularly difficult for our interstate teams). Generally, the embryo transfer occurs in the intended parents’ home state (and in Victoria, approval from the Patient Review Panel must occur first).

In Australia, commercial surrogacy is prohibited, which means that surrogate mothers cannot receive a commercial benefit from the intended parents. This does not mean that the surrogate mother is out of pocket. Intended parents are responsible for covering a range of expenses incurred by the surrogate that are associated with the surrogacy arrangement.

There are so many variables involved that it is impossible to give a “one size fits all” answer. Firstly, the “time” referred to is the time between telling your Dr/Clinic you want to proceed with surrogacy and the date of the first embryo transfer. The main determinants are how organised you are in making your appointments and completing your paperwork; how busy your clinic is; and the timing of receipt of all your specialised reports.

Gestational surrogacy occurs where a surrogate carries an embryo created from the eggs and sperm from the intended parents or a donor. Traditional surrogacy occurs where a surrogate uses her own eggs. Except for the ACT, where traditional surrogacy is not legal, both types of surrogacy are legal in all other Australian states and territories although most IVF clinics will not facilitate traditional surrogacy (and will erroneously state that traditional surrogacy is illegal, when it is not).

Surrogacy Agreements are an important part of the surrogacy process, but they are not like other legal agreements and are generally unenforceable (except insofar as they relate to the reimbursement of expenses). So why do we need them? Firstly, although generally unenforceable, most Australian States require that parties have entered into a written surrogacy agreement for a Parentage Order to be made. Secondly, surrogacy agreements set out the parties’ intentions regarding key issues, such as where the baby will be born and how many IVF cycles will be attempted to conceive.

Are you confused about some of the jargon or terms used in surrogacy? Well we are here to help!! Here are some common ones you may come across on your journey.

The first thing you need to do is to check whether you and your surrogate qualify for surrogacy. The requirements are different in each of the Australian states and territories, so you should check with your doctor or call a surrogacy lawyer to ask for the criteria. The next steps depend on whether you already have a surrogate or not. If you do, that is fantastic, and you should call me or another fabulous surrogacy lawyer to get the ball rolling.

Surrogacy laws in Australia vary in each state and are governed by state legislation. Here you will find a high-level overview of the general legal position in Australia.

In all surrogacy arrangements, regardless of which state you are in, you will need to engage a suitably qualified psychologist to provide you with specific counselling prior to formalising a surrogacy arrangement and, in most states, after the birth of a baby through surrogacy.