Surrogacy is a form of assisted reproduction where a woman carries a child on behalf of someone. It is a complex area of law governed by the Surrogacy Act 2008 (WA). The surrogate is the legal birth mother and the person or couple having the surrogate carry the child are the arranged parent/s.

LEGAL OR NOT?

Surrogacy has been legal in Western Australia since 1 March 2009.

Unlike in California from the United States of America, commercial surrogacy is not allowed in Western Australia. Commercial surrogacy is where the birth mother receives a payment to carry a child. The only payment the surrogate can receive is reasonable compensation for expenses relating with the pregnancy or birth.

CAN A SURROGACY ARRANGEMENT BE ENFORCED?

Generally speaking, surrogacy arrangements are not enforceable the way an ordinary contract might be, if someone does not comply with a term of the contract.

However, a surrogate can insist on payment for agreed expenses so long as they relate only to the pregnancy or the birth of the child.

REQUIREMENTS FOR SURROGACY

Both the intended surrogate mother and the arranged parent/s must receive independent legal advice, be assessed by a clinical psychologist and medical practitioner and there must be an agreement in writing signed by both parties.

The birth mother must be at least 25 years old and must have had a previous child.

The Human Reproductive Technology Council must then approve the proposed surrogacy arrangement before the surrogate becomes pregnant. Fertility Clinics might also have their own individual requirements.

AFTER THE BIRTH

The arranged parents must wait 28 days after the birth of the child but prior to the child turning six months, to apply to the Family Court of Western Australia for a parenting order stating that they are the legal parents of the child.

The Family Court will need to be provided with an agreed plan in writing that addresses any time the child is to spend with the surrogate mother.

The Family Court will then consider what is in the child’s best interest. There is a presumption that it is best for the parentage order to be made in favour of the arranged parents. The surrogate’s consent will usually be required.

REAL LIFE SURROGACIES

• Perth: Most people are familiar with “Baby Gammy”. This was a baby who was born with Downs Syndrome with his twin sister Pipah in February 2014 in Thailand. The surrogate mother carried the twins using Bunbury man David Farnell’s sperm and donor eggs.The Farnells returned to Australia in February 2014 with baby Pipah only. The surrogate mother then sought orders from Western Australia’s Family Court to have Pipah returned to her. The Family Court ultimately found that baby Pipah should continue to live with the Farnells.The Farnells were accused of abandoning baby Gammy. However, the Family Court found that at some point in time during the surrogacy, the surrogate had fallen in love with the twins and wanted to keep them.When unrest broke out in Bangkok in early February, the Farnells were advised by the Australian Embassy to return home. As the surrogate mother refused to relinquish baby Gammy who was in hospital, the Farnells returned home with Pipah, who was already in their care.The Family Court raised as a problem the possibility of surrogate mothers developing a bond with the child/ren they are carrying despite commercial surrogacy arrangements being in place and the dilemmas that then flow on from this.

• Queensland: A surrogacy arrangement went sour when Alexa, related to the intended parents, gave birth to a newborn baby.The mandatory pre-surrogacy psychological assessment had already raised some red flags, including the intended mother’s anxiety and Alexa’s previous post-natal depression. Notwithstanding, after three hours of counselling, the surrogacy arrangement proceeded.During the pregnancy, Alexa was put on a high dose of progesterone by the fertility clinic to assist her in maintaining the pregnancy, which made her very nauseous and unable to get out of bed at times. The intended mother also generally did not attend the ante natal appointments with the surrogate as she had originally agreed to do so.When the baby was born, the surrogate mother claimed $8,300 in unpaid expenses mainly relating to travel and legal costs. The intended parents offered to pay her 2/3 of this amount after she signed a parentage order to enable them to become the child’s legal parents.The surrogate mother did not allow the intended parents to take the baby home until she received payment, saying “I have every right – it’s a business deal, isn’t it? It’s not a friendship”. On the other hand, the intended parents refused to pay the surrogate’s expenses until she signed the parentage order, in effect engaging in a form of coercion.Finally, an agreement was reached four days after the baby was born, with the intended parents agreeing to pay all of the surrogate mother’s expenses immediately and Alexa agreeing to relinquish the child.

• Nepal: In or about October 2015, an Australian man with twin babies was left stranded by a court decision in Nepal when the babies were born under a surrogacy arrangement four days after Nepal’s Supreme Court ruled surrogacy be suspended.After a six week stalemate, the babies were able to leave Nepal.The future of commercial surrogacy in Nepal remains uncertain.

• Mexico: A single mother carrying a child for a Norwegian man in 2016, is receiving monthly instalments of 10,000 pesos, tripling her income from working as a maid. She turned to surrogacy, as it’s a means to increase her income without having to resort to prostitution.Another surrogacy case involves Nancy who was the surrogate for a gay couple from San Francisco. She received a final cash instalment of approximately 150,000 pesos (7,000 pounds). She turned to surrogacy in a bid to improve her daughter’s life.A further surrogacy case involved three children born to surrogate mothers (one gave birth to twins) in Cancun, Quintano Roo, in an arrangement with gay New Zealand parents and an Argentinian egg donor. One of the New Zealand parents is a prominent lawyer and the owner of a law firm in New Zealand.The couple said the children were born among cockroaches and in unhygienic hospital conditions. One of the children was born prematurely and required extra hospital care which cost US$79,000.This shows the complexities involved in surrogacy cases, particularly international ones and the high degree of uncertainty involved. Even though one of the parents was a prominent New Zealand lawyer, they struggled with the surrogacy process.

CONCLUSION

Surrogacy arrangements are complex and proper preparation is essential. Any potential issues that may arise during the pregnancy are better off dealt with prior to the surrogacy.

If you are considering entering into a surrogacy arrangement, please contact us to obtain legal advice so we can discuss how we can best assist you in your endeavours.

About the author:
Samantha Gomez is a Perth lawyer and an associate at Lynn & Brown Lawyers. Samantha has over 10 years’ experience in legal practice and an experienced lawyer in the areas of family law, Wills & estates and some minor criminal matters.