Sarah Bevan speaks with Surrogacy Australia about Legal matters

Anna McKie interviews our Surrogacy Expert, Sarah Bevan about what to expect in surrogacy legals

Anna McKie runs weekly webinars on Wednesday nights at 8 pm Eastern Standard Time. These webinars alternate between having a focus for Intended Parents (IPs) & Surrogates every second week.  She is joined by a co-host each week who is either a surrogate, or a parent through surrogacy (be that a gay dad or a straight mum, for example).  Questions are encouraged and can be anonymous, so if there is something that hasn’t been answered, you may refer back to the YouTube comments section or send us an email.

The Surrogacy Australia website has a wealth of information on Surrogacy, FAQ’s, Membership and our backlog of Webinars and further reading you might like to explore.  Additionally, this website you’re on right now has lots of helpful insights and guidance.  Use the search bar above, or navigate to the Fail

Anna McKie gave birth as an altruistic surrogate nearly two years ago.

For those that missed the live webinar, here is the partial transcript (warning, this is mostly unedited, so apologies in advance for any errors):-

Tonight my co-host is Sarah Bevan from SB Family Lawyers. Sarah has practised solely in family law since the commencement of her career over 20 years ago and obtained her Specialist Accreditation in Family Law from the Law Society of NSW in 2005.

Sarah Bevan Family Lawyers are experts in surrogacy having assisted many Australians and international intended parents and
surrogates. Sarah led the team responsible for the landmark New South Wales decision for the first same-sex couple to be registered as parents on their child’s birth certificate after that child was born through a surrogacy arrangement.

Surrogacy Needs of Australians

This session is perfect if you’re new to surrogacy and you’re looking for a surrogate, you may be Intended Parents (IPs) or you might have formed a team and are completing the paperwork, you might be a team pregnant with a surrogate baby and/or you might be parents through surrogacy or you also might be an experienced surrogate.

What are the steps in Australia for surrogacy?

Stages of legal work we will discuss:-

1. Seeking legal advice
2. Written agreements
3. Post-birth (Parentage Order)
4. General Concerns
5. Donor egg/sperm issues
   

   These steps apply if you have found a surrogate already.

The infographic here is assuming you have found a surrogate.  If you haven’t yet found a surrogate, your options are finding a known surrogate (and that might be a family or friend of a friend) so by sharing with them that you need a surrogate or it might be finding an unknown surrogate and that would mean joining some online groups or SASS which stands for Surrogacy Australia’s Support Service.

In terms of qualifying you either need to not have a uterus which means you need to be a same-sex male couple or a single man or because you were born without a uterus or have had a hysterectomy or you’ve been advised by a specialist that carrying a pregnancy
would be too great a risk for yourself or the baby unexplained infertility does not necessarily make you eligible for surrogacy as you’ll eventually need confirmation about that from a fertility specialist.

In terms of eligibility to be a surrogate, the checks are there to make sure that you’re fit and healthy enough to carry another pregnancy basically and then once you have a team the steps that you need to go through before trying for a pregnancy are counselling and legal and usually engaging with an IVF clinic too.

In terms of the stages of legal work then once you’ve completed the counselling and legals and your IVF clinic have approved you then you’re aiming for pregnancy then after birth some states have mandatory relinquishment counselling around six weeks after birth and then that’s required before the parentage order.  So that’s a bit of an overview of some of the steps to expect.

We’re looking for a surrogate

We’ve recently had an offer from someone to be a surrogate

 

What should we look for in our surrogacy lawyer (both for the surrogate IPs and the surrogate)?

Can the same lawyer be used for the IPs and the surrogate if we live interstate?

• No, and it also can’t be different lawyers from within the same law firm because of our rules of engagement and our professional obligations the same law firm almost always is considered to be in effect the same person so you do need two sets of lawyers this is going to be focused towards the IPs but because (we’ll get to costs in a minute) the IPs are going to be meeting the costs of the surrogate, it’s probably very relevant for the IPs as well to be factoring that in and take into account the fact that your surrogate needs a lawyer as well.

When should we see a lawyer?

This is probably the biggest or the first question I get asked when people are early in their surrogacy journey –  When should we see a lawyer?

And you probably hear me say this a lot (and most people just think of it as a typical lawyer response) but the answer is it depends – and it depends on a range of issues I generally say that if you’re using a known surrogate you should be seeing a lawyer sooner rather than later.

I’m going to discuss some of why that is when we get to a later section about concerns and possible issues that may arise.  If you are, for example, going through SASS and finding yourself a stranger surrogate, you’re normally both coming to it with intent and you are normally doing it with a lot of research (that’s not to say the other people going with a known surrogate and not doing the research) but most of the time those IPs we don’t
normally see until they’ve formed the surrogate team.  So when you’ve got the idea of, “well this is going to be my surrogate we’re not definite but we’re at the point of this is going to be my surrogate” and I think in the chat beforehand it talked about counselling then legal advice
you can do that because a lot of the counselling that you are required to do does bring up some of the what-ifs and the concerns that a lawyer is going to think about but as surrogate lawyers, we have a great job in helping people build families the other part of my job mostly relates to people’s families breaking down so you can probably see from that why my team and I like doing surrogacy!

We as lawyers tend to be very cynical – but our job is to think about all the what-ifs and the bad stuff that people don’t want to do so when you come and see a lawyer when you’re at the beginning of your surrogacy journey we’ll bring up some of the what-ifs that you might not have otherwise thought about and you might need to go back to counselling or take to your counselling if you haven’t yet had your counselling.  Sometimes we say it’s never too early to see a lawyer what we do find with most IPs is that they are mostly people who have put in a lot of time and effort they’re great from a legal perspective they’re great clients to work with because they put their effort in they don’t come with a complete lack of knowledge they’ve got an idea but they want to make things work for themselves.

Some people however just simply don’t have the time or energy to be going through all of the detail that they need to them that other people might do on their own want to come and say right at the beginning before they’ve even got a surrogate they might want to come and say, ‘tell me the steps tell me what to look out for”, “In your experience where the problems lie” and we see people like that fairly regularly and, as I said, we also see people who’ve got their surrogacy team basically ready and they come prepared and they’re great project managers.

Often people might do the counseling and legals in parallel.  Usually those people who are further along in their process are getting both things done at the same time and we will have people call and speak to our paralegals and say, ‘which one first a lawyer or counsellor and again we’ll normally answer with – well it depends,  “Have you got an appointment booked?”, “are you concerned about anything in particular?”.  If there’s no concerns in particular then maybe you want to go to your councillor first but don’t close off the possibility that you’re going to need to go back – it really is a personal choice.

AM – If people perhaps haven’t officially had the offer from their surrogate and then you know they’re ready to do that official paperwork and maybe those way back at the beginning (in terms of they know that surrogacy is the path for them they haven’t even found a surrogate), is it worth them engaging with a lawyer then? I’m sensing there’s never any harm because you might potentially be creating a connection with a lawyer that you then will engage with in the future.  Is there some benefit?

SB – To be totally frank there’s not as much benefit as I could offer someone who’s further along in the process and normally if people are calling up to do that we’ll say look don’t bother booking in for the full hour just come for a quick half our chat – it’s cheaper, it’s quicker and we can go over some of the concerns that you might have.  It is potentially worthwhile especially if you’ve got some tricky issues.  So if people have some history themselves that it might be concerning towards the surrogacy process then absolutely come and see us earlier the better.

AM – I appreciate that frankness in terms of if there’s nothing major you probably don’t need meet with your lawyer until you’re getting close to an offer and then at to that point of the written agreements then.

SB – Yes, exactly.

AM – well that probably leads us nicely into the next question then which is about the written agreements so assuming that they’ve got the team and they’re getting ready to do the counselling and legals for surrogacy, so what’s the next step in terms of finding those lawyers and any advice on that? What is that agreement going to cover and what are reasonable expenses that we can cover for our surrogate and are those agreements enforceable?

Written Agreements

We have a surrogacy team and are getting ready to do the counselling and legal parts for surrogacy.

Whats the next step?

What does/should an agreement cover?

What are reasonable expenses that we can cover for our surrogate?

Are the agreements enforceable?

Finding a lawyer for Written Agreements with Surrogacy

SB Okay, let’s start with finding the lawyer.  The reality is that surrogacy is a very niche area and there’s a relatively small number of us that
practice in it substantially – it doesn’t earn us great lots of money like some of the other areas of law do (which might be why less people do it) and also to be frank, lawyers are often very good at talking the talk so lawyers might tell you they know surrogacy and in fact they don’t and then they’ll be ringing around or trying to find someone who can help them out!  I always say if you’re making an online inquiry to a lawyer feel free to ask basic questions about their experience in the area – we’re not allowed to lie out right so you would hopefully get an outright answer.  Customers should ask things like, “how many surrogacy cases do you handle a year?”.

AM – For people who are with SASS in our portal (Our Intranet of Resouces, Surrogacy Australia) which is our internet of resources we have a list of councillors and lawyers in each state who practice in surrogacy and have experience and that I’ve contacted and you know to make sure that they are current and up to date so that’s our job to keep that up to date so in terms of that niche market we’ve got some of those lists there and so obviously Sarah’s firm is one of the ones that are very experienced in New South Wales.

SB – Then the surrogate is going to need a lawyer as well – it is a totally up to your surrogate to choose her own lawyer but I always recommend getting a couple of names from the
lawyer that the IPs are going to use because most of us have big strong personalities and every now and then we clash with people and it might be a very experienced surrounding lawyer out there but one who we just don’t gel with.  Often there are great pairs, so that when you’re exchanging the agreement and going back and forth to each other that’s amicable for you and also probably fairly smooth. The idea is for this to be a collaborative process of working together – you don’t have two sides of an argument you have two sides who want to have the same goal in mind and want to work together but have to because the way lawyers rules are to have separate lawyers. So absolutely, get a couple of names and let your surrogate know suggested lawyers who they’re familiar and comfortable with but it’s still her decision in the end.

A couple of tips about working with a lawyer

Just remember that our time is your money so be prepared and have your list of questions ready. I find with surrogacy clients that they are normally very well prepared and they come with a list and no experienced surrogacy lawyer is going to find that in the slightest problem in fact we’re going to welcome it and also don’t be shy about costs your lawyer really should be completely upfront about what it’s going to cost and some lawyers will charge just a fixed fee so not on our, what we usually call it, timed hourly build rate and for altruistic surrogacy within Australia that’s what our firm does an example and I know a fair number do.

So what should an agreement cover?

It depends! But in saying that it means it’s entirely personal to your situation so there are a whole heap of things that have to be covered in the surrogacy agreement.
It’s actually technically called a surrogacy arrangement under most of the acts (which I find really quite bizarre wording) so I’ll stick with “agreement”).

So a surrogacy agreement is designed to allow for the transfer of parentage once the baby is born – we’ll come to that what that means a bit later on.  One of its aims should be is to encourage collaboration and cooperation between the IPs and the surrogate because, like I said, a number of the what-ifs are going to be coming up so it can cover a whole range, in fact no set limits as to what you can put into a surrogacy agreement – in many aspects of my work I say less is more, in a surrogacy agreement I think the opposite often applies so i get clients to think about, what are the limits on the IP’s role during pregnancy, you know it’s perfectly understandable for IPs to be wanting to see that belly grow and rubbing the belly and that sort of thing but maybe she doesn’t want that, maybe the surrogate mother feels that would feel intrusive to her, what sort of appointments are they going to go to all of that can be put into the surrogacy agreement.  There’s also the bad what-ifs, what if you’ve got a pair of IPs or a couple if they separate during the pregnancy what if one dies what about the really bad situation like significant health issues for the fetus, what’s the position on termination – all of those sorts of things so there’s no certain limits to what an agreement can cover and a lot of these would be covered equally in counselling too.

Our process is you’ll have your initial appointment there’ll be a whole lot of what-ifs so you’d go off for further counselling discuss all those start off forming a view as to how much you want in that agreement and then the IPs would be coming back and saying okay this is where we think we’re at and we start finessing it from there.

AM – and it’d probably be right to say that most teams never think that their team will fall apart

SB – oh exactly

AM – It’s one thing to talk in counselling about things like social media announcements or how hands-on during the pregnancy, do the IPs want to be with the
surrogate, etc, but I’m thinking what if that changes during the pregnancy I doubt that any team once you’ve started to go through surrogacy and realize so much of it’s about trust I doubt that you know the IPs are going to come to the surrogate during pregnancy and said you said we were allowed to rub your belly once a week, come on that’s what it says here.  I’m sure it’s going to come down to the surrogate feels differently or the IPs feel differently, have a conversation.  We write this in the agreement but you need to trust each other.

SB – yes exactly, it’s a guideline it’s to promote collaboration to promote cooperation and i suppose that leads nicely to the last point on the slide which is, Are agreement’s enforceable?

Are Surrogacy Agreements enforceable?

I feel really apprehensive when i have to say this to people.  No, they’re not – with one exception which is to do with expenses.

They’re not enforceable, so the example of rubbing the belly once a week even if they came and waved that around I mean that would be silly to do but if they did is it enforceable?No, it’s not and that’s something that people really struggle with sometimes.  Entirely understandably, but it’s the framework, the legal framework that we work within and so much of this process is about trust.  People say why do i have to do it at all?, and the answer is really very simple, because if you don’t you don’t get a transfer of parentage order, simple.

AM – So they could come at and going let’s do this bit quickly because you just have to do this because of the parentage order but it is an extra opportunity isn’t it to reflect on what you want as a team but also realizing that the reason it’s there is because what would the opposite be if it was impossible and then we’re suddenly forcing a woman to have her belly rubbed once a week if she changes her mind or how the birth wants to work or the termination of pregnancies  the opposite of that is not a path that we’re going down in Australia and so it is the framework that you say that we’ve got and i think it is okay to be nervous at the beginning in terms of what if that means she changes her mind on lots of things but then as people come into surrogacy and get to know the community they realize surrogates do not want to keep your baby we’ve had our family and there’s a lot of trust that from us to you as well that they’re going to do what they say they’re going to do and cover our costs and be there for us you know as in many ways that they have said that. To have this not enforceable thing but it’s required for that parentage order exactly and it’s in a way the same as any even with a heterosexual couple and she gets pregnant naturally and she has this birth plan that says she wants him to rub her back during you know labor and then she says you touch me and i’ll chop your hand off you know it’s exactly the same thing.

It’s a guideline and it’s more about you having those conversations.

Expenses – What can you cover in Surrogacy matters?

The legislation sets out what can be covered. When I refer to legislation it’s actually state and territory based so we have separate legislation in each state and territory of Australia and they’re all generally the same with small but very important differences and those differences can trip you up if you don’t get it right so, for example, some states require a surrogate to have had her own child (live child) before other states don’t so when I refer to legislation it’s not uniform but they all do in general terms say this is what can be covered and it includes obvious things so the surrogate’s legal expenses the surrogates direct medical expenses & surrogates travel to and from appointments, lost wages for travel to appointments including her partner if she has one and things like if they had to put the kids in childcare or after school care when they’re having those service related appointments those costs are reasonable too, obviously the fertility appointment, fertility costs and all of those sorts of things they’re all obvious and some of the questions we get is, “can we pay for nice things as if she was your partner that you’d probably be covering because she’s sore and tired”, and that sort of thing and that’s the tricky one.

The answer unfortunately is generally, “No”! The extras in terms of hot stone massages, (remedial massages is a different thing) but the nice hot stone massages or facial at the day spa which is tricky.

For example, if your surrogate in her day-to-day life did not have a massage it’s not part of her life to have a massage weekly but she suddenly requires that during pregnancy that’s not okay because that’s a lifestyle change likewise if she already was paying for a cleaner in her normal lifestyle the IPs don’t have to take that cost on but perhaps if in the late stages of pregnancies particularly she’s a single mom and she physically can’t do something anymore it would it be reasonable to uncover an expense that if her family can’t function and she needs that support it’s sort of being reasonable things I’d imagine.

We know that these things happen you just don’t necessarily want to put it in your agreement, but the question is who’s going to be saying anything and the reality is certainly things go wrong that anyone’s going to be saying something and we do get our IPs who call us during pregnancy and say can we do this the first question is, “has she asked you for this or do you want to do it yourself?”. We can pay for it yourself no it’s not covered in the agreement would it be breaching what this is and it depends on it again comes down to the circumstances and it’s you know again it’s like so much of this about being reasonable and rational yes all fair points there and I suppose some IPs might fear that if they pay for certain things will it compromise their parentage order down the track that and so they’re reasonable fears.

Stages of Legal work:

Post birth (Parentage Order)

We had a baby through surrogacy.  What are the next steps?

Question: As IPs, when (If ever) do we get our names on the birth certificate?

Question: Do we need to keep all of our receipts for surrogacy-related expenses for the Parentage Order?

Question: Is anyone ever denied a Parentage Order? 

We’re new to surrogacy and concerned:

Question: Will the surrogate ask for money?

Question: Are we allowed to buy our surrogate a gift

Question: What are the common pitfalls to be wary of?

Question: What if the surrogate wants to keep the baby?

Donor egg/ Donor Sperm issues

We will be engaged with an egg (sperm) donor to make embryos

Question: Can I use a known donor (egg and / or sperm)?

Question: Can I use an unknown donor? (eg. World Egg Bank)

Question: Do we need an agreement?

Question: Is that agreement enforceable?

And some of our listener questions:

Would I require a surrogate lawyer and have an agreement for an overseas egg donor?

What should people expect with the approximate cost of surrogacy (including legal fees)?

 

Refer to the video or the transcript on the video for the answers to these questions, or simply, contact us and make an appointment to see a Surrogacy Lawyer.