What is Surrogacy?

Surrogacy comes within the scope of assisted reproductive technology because it allows a woman to carry the child of another couple or ‘intended parents’. These intended parents are the ones who pass on their genetic material. Either one or both of the intended parents may provide biological material to the child(ren). Ultimately, it is a process whereby parents who are unlikely to become pregnant can have another woman carry their baby in the surrogate’s uterus. This technology has vast implications in the legal domain.

Surrogacy is a highly complex process and there are additional intricacies due to the increased number of parties who potentially have a legal claim as ‘parent’ over the child. Simply put, this is because there is an additional third party who carries the baby in their uterus despite possibly having contributed no biological material to the child.

Complex psychiatric issues also come into play, where the psychological impacts of having a baby that is not technically their own have led to some interesting legal developments, one of which is referred to below. Likewise, surrogacy means risking a situation where the ‘intended parents’ decide they do not want to take parental responsibility of the child once the child is born, leaving the surrogate mother in a position where she is carrying a child she is not prepared to take care of. Jurisdictions within Australia, including New South Wales, have attempted to regulate these issues by banning commercial surrogacy.

Commercial versus Altruistic Surrogacy

Commercial surrogacy includes arrangements where the surrogate mother makes some form of profit from the arrangement. This means she is compensated for above what ordinary medical and legal fees would cost for the pregnancy.

The alternative to commercial surrogacy is often termed ‘altruistic surrogacy’. Altruistic surrogacy dichotomises commercial surrogacy, as the surrogate mother volunteers to carry the baby with no financial compensation beyond medical or legal fees directly relating to the surrogacy. This often means altruistic surrogacy arrangements are made with close personal contacts of the intended parents, including siblings and close friends. This also attempts to circumvent issues with commercial surrogacy where the surrogate mother can be vulnerable and taken advantage of.

On the converse, some may argue  that it is unfair for a surrogate mother to carry the child of another without any real or tangible compensation. Regardless of the ongoing debate, surrogacy in New South Wales is regulated by the Surrogacy Act 2010 (NSW) (‘the Act’).

The Surrogacy Act

Commercial surrogacy is illegal in Australia. Under the Act, it is prohibited under section 8 for commercial surrogacy arrangements to take place.

Commercial surrogacy is defined under section 9 of the Act to include: “(1) For the purposes of this Act, a surrogacy arrangement is a commercial surrogacy arrangement if the arrangement involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person: (a)  agreeing to enter into or entering into the surrogacy arrangement, or (b)  giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or (c)  consenting to the making of a parentage order in relation to a child of the surrogacy arrangement. (2)  However, a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee, reward or other material benefit or advantage provided for is the reimbursement of a birth mother’s surrogacy costs.” The key term in the section above is that anything beyond reimbursement of ‘a birth mother’s surrogacy costs’ will constitute as a commercial surrogacy.

The implications of this are that the important protections outlined in the Act which allow for the court to formally make orders to transfer the parentage of the child from the surrogate mother (and partner if they exist) to the ‘intended parents’ are not presumed in commercial surrogacy arrangements.

Surrogacy Arrangements are defined within section 5 of the Act to include both pre-conception and post-conception surrogacy arrangements. Pre-conception surrogacy arrangements is where a surrogate mother agrees to become or attempt to become pregnant with a child whose parentage will be transferred to another person or persons after the child is born. Post-conception surrogacy arrangements are the same except they take place once a surrogate mother is already pregnant. This means a woman will be covered by the Act so long as arrangements are made either before conception or during the pregnancy of the child(ren) in question.

Case Study: Seto & Poon [2021] FamCA 288

In the case of Seto & Poon, the Applicants (Mr Seto and Ms Yue) engaged the Respondent (Ms Poon) as their surrogate mother in a surrogacy arrangement. The Applicants had previously independently immigrated to Australia and had undergone five unsuccessful IVF treatments prior to engaging Ms Poon. The Applicants negotiated a number of surrogacy arrangements throughout the pregnancy, all of which held commercial elements beyond the scope of what is allowed in the Act. The pregnancy ended up being twins, with the biological material coming from Mr Seto and Ms Poon.

The arrangement initially included having Ms Poon act as a surrogate in exchange for obtaining Australian residency by giving birth to an Australian citizen. Later on a new agreement titled ‘Agreement on Renunciation of Guardianship’ providing Ms Poon would give up custody of the twins only if Mr Seto paid for her IVF and medical costs, a $7,000.00 deposit, $4,500.00 towards her tuition fees, $50,000.00 paid intermittently throughout the pregnancy for her immigration fees as well as other costs amounting to over $50,000.00. Over time a new visa pathway became available to Ms Poon, and she started to demand more payments upwards of $30,000.00 before eventually in January 2021 demanding a payment within 7 days worth $290,000.00. These payments clearly went beyond the scope of mere ‘reimbursement of a birth mother’s surrogacy costs’.

While the Court accepted Ms Poon and Mr Seto as the biological parents of the children, it was deemed to be in the best interests of the children for the Applicants to have shared parental responsibility and for all time with the children to be spent with them instead of the Respondent surrogate mother.  The history of the children after they were born was that they lived with the Applicants, and even though under the principles of another case (Masson v Parson [2019] HCA 21), it was only Mr Seto that held parentage out of the two Applicants. This history meant they had both assumed the role of full-time parents with all associated responsibilities.

This case demonstrates that while the Court determines cases on their own unique merits, commercial surrogacy carries significant risks within New South Wales. In order for intended parents to be protected from having to resort to litigation, it is necessary for altruistic surrogacy arrangements to be made.

Contact us

If you are thinking of entering into a surrogacy arrangement or have already done so and are experiencing issues, it is important to know your options going forward by seeking independent legal advice. If you would like more information on how the Family Law Team at Genesis Edge can assist you, please do not hesitate to contact us on 1300 559 888, or fill out the enquiry form here.