Surrogacy myths & misconceptions
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:
Myth: Surrogacy is illegal in Australia
NO!! Surrogacy is legal in every state except for the Northern Territory (currently there is no surrogacy legislation in the NT but watch this space…its coming later this year). Each state has its own legislation that sets out the legal framework that must be followed. So, although it is legal – it must be done in accordance with that legal framework in the state where the intended parents live. Speak to a surrogacy lawyer before you start the process!
Myth: The surrogate will want to keep the baby
This fear that many intended parents experience is often a result of the legal status of the child after birth. In Australia, when a surrogate gives birth to a child, the surrogate and her partner (if any) are considered to be the legal parents of the child. In my experience, it is extremely rare that a surrogate will want to keep a baby. Surrogates are not offering to carry a baby for someone else with the thought of potentially keeping the baby. Generally speaking, they are women who have experienced straight-forward pregnancies and births but have completed their own families - if they wanted another baby of their own, they could have one. There is an immense “high” experienced by a surrogate when she sees the baby with the intended parents. A key concept introduced by Sarah-Jayne was that babies are gestated in the body and the mind. A surrogate gestates the baby in the body but not generally the mind (and therefore doesn’t see the baby as her own).
If a surrogate did refuse to relinquish the baby to his/her intended parents at birth, intended parents do have the ability to go to Court and obtain parenting orders (as distinct from a parentage order) that gives the intended parents the right to care for the child.
Myth: The counselling and legal requirements are merely to tick a box
The most successful surrogacy arrangements are those where the parties all meaningfully engage in the process. Viewing the mandatory counselling and legal requirements as “tick the box” exercises may mean that you are not as prepared for the path ahead as you could be. Both steps are critical to the success of your surrogacy journey – engage with us early and often!
Myth: My mental health condition may preclude me from surrogacy
Many worry that their past or present mental health condition may preclude them from entering a surrogacy arrangement (particularly in Victoria where the Patient Review Panel is responsible for approving arrangements before they can proceed). The reality is – most people have (or will) experience a mental health condition such as anxiety or depression at some stage in their lives. The important thing is having strategies and a support network in place to manage any ongoing condition or to prevent relapse. I personally worried that my anxiety disorder would lead the Patient Review Panel to conclude that I was unsuitable for surrogacy but it was not an issue as a result of the support systems I had in place.
Myth: The independent psychological assessment is an assessment on my worthiness or ability to be a parent?
Absolutely not! The assessment is not a pass or fail exercise. Among other things, the assessment is an opportunity to identify the factors that might influence an outcome if complications arise.
Nicole Russell is a specialist surrogacy and fertility lawyer advising heterosexual and LGBTIQ+ individuals and couples to achieve their dreams of becoming parents. Nicole provides specialist legal advice on all aspects of Australian and international surrogacy arrangements and fertility legal issues including the use and transport of donor gametes. Nicole is based in Melbourne and acts for clients in all Australian states and territories. Nicole is an IVF warrior and a mum through surrogacy in Australia.