Law Society of NSW – Podcast
Lawfully Explained – Can you be paid to make a baby?
Interviewer: Amy Dale (AD) Interviewee: Nicole Evans (NE)
LISTEN TO THE WHOLE PODCAST HERE
Hi, I’m Amy Dale and I’m not a Lawyer, but since working at the Law Society I have met and worked with plenty of them, and I have also met countless people who need help understanding the Law and, more importantly, knowing how to find the right Lawyer. That is why we have created this podcast, to help make the Law accessible for you, for me, for everyone, no jargon, no law speak, I promise. Just me diving into the most common legal problems to help you make the best decisions possible. Welcome to Lawfully Explained.
AD: Well, the process of starting a family can be an incredibly joyful one, but at times it can also be an incredibly fraught process. And if you are thinking of arranging either a surrogate or a sperm doughnut, there can be additional trickiness. So what are your rights as a future parent or indeed, as a surrogate or as a sperm donor? What happens when it comes to visitation rights? And what happens if someone changes their mind? To answer all these questions, I’m joined by Nicole Evans, who is a family law expert and the Managing Director of Barker Evans. Nicole, you’ve been on the show before, so welcome back to lawfully explained.
NE: Thank you.
AD: I just want to start, first of all, with surrogacy. I mean, I’m sure everybody does know, but what is a surrogate parent?
NE: So a surrogate parent is a person that carries a child, for intended parents, so usually the genetic parents.
AD: In Australia, can someone be paid to be a surrogate?
NE: No in Australia it’s illegal under the Surrogacy Act to be paid for the Act of Surrogacy.
AD: But that doesn’t mean surrogacy itself is illegal.
NE: Commercial surrogacy in Australia is illegal. Altruistic surrogacy is legal.
AD: What would altruistic surrogacy be defined as?
NE: So it would be defined as carrying a child for someone basically to do a nice thing, a nice deed for someone commercial surrogacy is when you get paid to be a surrogate.
AD: In an altruistic set up because obviously there can be costs involved with pregnancy, can any form of compensation or reimbursement be made?
NE: Yeah, so a surrogate can receive reimbursement for expenses, medical costs, travel, accommodation, childcare if she has other children already and lost income if she’s unable to work for medical reasons.
AD: I imagine that’s quite a tricky process to go through, because if those bills start racking up and you start saying, Oh, I need my transport cost to and from this appointment or this time off work and I’ve had to go into unpaid leave, if those costs build up and someone is paying more and more, does it ever get risky that it starts to look like it’s falling into a commercial arrangement?
NE: Yeah, absolutely you have to be careful, always obtain legal advice in relation to the agreement and to the expenses being paid. You certainly don’t want it to look like it is a commercial surrogacy arrangement when it’s not.
AD: So using an example of an altruistic surrogacy, so, for example, I imagine that that might be, say, a sister or a friend who might agree to be a carrier for someone, once that verbal conversation and verbal agreement has been made, what’s the paperwork involved from that point on?
AD: So using an example of an altruistic surrogacy, so, for example, I imagine that that might be, say, a sister or a friend who might agree to be a carrier for someone, once that verbal conversation and verbal agreement has been made, what’s the paperwork involved from that point on?
NE: Yeah, Look, that’s a really good question. So most surrogacy agreements in Australia are altruistic. They’re three people that are known to the surrogate. So the documents involved relate to medical assessments of the surrogate, counselling for the surrogate and the intended parents. The actual surrogacy agreement itself, which needs to be drafted by lawyers, and both parties need to have independent legal advice. There’s also a psychological assessment, and in some states external committee and IVF clinic approval is required for the process.
AD: Oh wow, so there’s no way that you can just decide not to do that paperwork.
NE: You can, but I strongly advise against it.
AD: And with a lawyer answer. In situations like an external committee or a psychological assessment, what are people looking for in that assessment?
NE: Just to make sure everyone understands the process, what everybody’s intentions and expectations are, and that there’s no underlying mental or physical health issues that might cause problems in the agreement.
AD: You’ve mentioned that in some states there are external committees and/or IVF clinics as well. Do other organisations or the government need to be involved at any point in an arrangement like this?
NE: The government doesn’t need to be involved at all if you’re going through an IVF clinic, each clinic will have their own processes and procedures that need to be followed.
AD: We’re obviously talking now at the stage before the process has begun of an embryo being implanted and that stage and the pregnancy, when the baby is born, can you talk me through the process of that transferal of parental rights and how that’s done?
NE: So in Australia, it’s it’s referred to as a transfer of parentage rights that’s done through the Supreme Court and that’s why you need the surrogacy agreement to lodge with the Supreme Court to say that everything’s been done properly. Affidavits would need to be filed and evidence in relation to the actual agreement and how it occurred, and the Supreme Court normally hears or determines the matter in chambers, so nobody actually has to attend court. The reason that you would need the transfer of parentage order is so that you can obtain a new birth certificate for the child listing the intended parents as the legal parents.
AD: So does that process happen because it has generally in the past been accepted that the person who is carrying the pregnancy is up until that transferal happens, that person is recognised as the mother.
NE: That’s correct. So still in Australia, the birth mother and if she’s married, her husband are the legal parents, and they would be listed on the child’s birth certificate.
AD: What are some of the most common issues around parental rights that you’ve seen?
NE: So the issues would be once a child is born who makes the legal decisions if there’s any health complications or issues in relation to the child before the transfer of parentage order at law it would be the birth mother and her husband making those decisions, but in, you know, a properly considered surrogacy arrangement, those decisions might be made jointly with the consent of the intended parents. Also, if there’s an issue in relation to a surrogate, and she doesn’t want to hand over the child after it’s born, certainly there’s legal issues that arise there.
AD: Does it ever happen that surrogates change their mind during that process?
NE: It’s pretty rare in Australia because surrogates aren’t paid, so most surrogates are going about that process because they want to do a nice thing and generally because they already know the intended parents so there’s already a prior relationship, so it’s it’s very rare in Australia.
AD: Rare as it is when it does happen, do you have any experience, or do you know why it happens?
NE: So it would probably generally occur in a case where the surrogate mother has used her own egg, so she’s genetically related to the child and once that child is born, may feel a particular connection and bond with the child. Most arrangements in Australia use gestational surrogacy so that the birth mother is not the genetic mother of the child.
AD: What happens in a case like that? Who legally is the parent in a dispute?
NE: Yeah, so legally, the birth mother, and as I said, if she’s married, her husband are the legal parents of the child. So the intended parents would need to file an application with the Federal Circuit and Family Court to obtain parenting orders in relation to the child.
AD: Have you seen cases where a surrogate has opted or expressed a wish to not continue with the pregnancy?
NE: I haven’t been involved personally in a case like that, if a surrogate did want to terminate the pregnancy, she would be able to do so legally. A surrogacy agreement generally deals with situations where there might be a medical issue with the child and how that would be resolved between all the parties involved, but ultimately the decision would come down to the surrogate.
AD: Another issue that I want to ask you about is medical concerns, and does there need to be any due diligence done in terms of medical concerns around the choosing of a surrogate?
NE: Sure, if you’re going through an IVF clinic, they will have their own tests that need to be carried out and medical checks. If you’re doing it at home without an IVF clinic, then no checks would need to be in place.
AD: Who can be liable if a medical condition was overlooked and the child or the pregnancy was affected by that medical condition?
NE: Yeah, look, that would depend on whether the you know, a particular condition was overlooked from a negligent point of view by the IVF clinic that would be different if standard checks were in place and it wasn’t picked up, I can’t see that anybody would be at fault.
AD: Pregnancy as an experience can be very different, and people can have very, very, very strong opinions about Do’s and Don’t’s when someone is pregnant and can have plenty of opinions about it. So I’m interested to ask in a situation when it comes to a surrogacy and when somebody is carrying and is the birth parent, can contracts be put in place of the intended parents saying, “Don’t want you to have coffee?” “Don’t want you to have, you know, fierce exercise”, can these sorts of things be demanded by an intended parent?
NE: Look, they would certainly be discussed during the drafting of a surrogacy agreement, and it’s something that would be included in an agreement, for example, that the surrogate, not smoke or drink alcohol. It’s not a legally binding contract, the surrogate still retains what’s called bodily autonomy. The reason for that is you can’t at law contract in relation to a child or a woman’s body. So even if the surrogate had signed a contract saying she would not undertake those activities at law, she can’t be found liable for doing so.
AD: So if they are catching up for coffee and they see that the birth mother orders a coffee, not decaf or something or mentions, you know, having a mouthful of champagne at a wedding when they’re 8.5 months pregnant or something like that, it’s nothing can happen to them?
NE: Nothing can happen, but it’s pretty rare in a surrogacy arrangement. A surrogate’s normally doing it, you know, as a nice act for usually people that they know. Generally, they’ve already had children, so it would be pretty rare for them to do something which would put the baby’s health at risk.
AD: What about if they if a surrogate parent does something that is more on the neglectful side, so rather than it being something that is anyone’s personal choice during pregnancy as to what they eat and the activities but something that is more absolutely clear cut objectively neglectful? Would there be any case that the intended parents could take against them?
NE: Look, it would depend on how far along the surrogate was and what the particular act was. As I said, the surrogate normally retains her bodily autonomy, so it would be a case by case scenario.
AD: Have you heard of cases where people don’t do the paperwork and don’t sort of involve any kind of official third party and do it entirely off the books? And I’m assuming that if you’ve heard about it, it means that something has gone wrong? Can you think of cases where that has happened, where it has been a completely informal arrangement and then things have gone wrong?
NE: Yeah, look, I’ve certainly heard of situations where proper documents haven’t been drafted and things have gone terribly wrong. A surrogate has retained custody of a child, and the intended parents have had to urgently apply to the Family Court for parental responsibility and custody of the child.
AD: You’ve talked about how in Australia, it’s only possible to do altruistic surrogacy, but people may have seen, even in the past 12 months, with the ongoing war in Ukraine, which has impacted surrogate parents because Ukraine is somewhere that offers commercial surrogacy. Are you able to talk about what happens if people go overseas?
NE: Yeah, look, it’s much more complex if people go overseas for a surrogacy arrangement, obviously it’s very expensive, and it’s illegal. So there can be difficulties obtaining passports or visas for the child to return to Australia and intended parents can face criminal prosecution on their return to Australia.
AD: Do you hear of a lot of examples where overseas commercial surrogacy arrangements have run into difficulty?
NE: I am aware of many situations and parents on return being referred to the DPP for prosecution. I’m not aware of anyone actually being charged though at this stage.
AD: We’ve talked a lot about what people need to know to ensure that things don’t go wrong throughout this process. But obviously, in your experience, does this mostly go right for people?
NE: Absolutely. If all of the proper processes are followed, generally things go pretty smoothly.
AD: I want to now look at sperm donation because there can be a lot of similarities with surrogacy. But there are also some pretty key differences in the law surrounding this, so far as I understand. First of all, can someone be paid for sperm donation?
NE: They can’t be paid in Australia.
AD: Oh, wow. I thought people could be paid. I thought it was…
NE: No. That’s why there’s a shortage of sperm and that’s why a lot of people now are turning to Facebook groups to obtain a sperm donor.
AD: Because I thought I would read stories about people saying, you know, it was like young men if they were trying to pay bills, it’s like they could just go to a clinic and …
NE: Certainly overseas they can and that sperm can be imported into Australia. You’d have to pay a clinic to use the sperm through IVF, but you cannot pay a sperm donor privately.
AD: So does it follow a similar process in Australia as altruistic surrogacy that you can ask someone? Ask a male friend for it?
NE: Absolutely. And people do it every day.
AD: Is there paperwork required during this process, or is this a little bit more of a straightforward arrangements?
NE: There’s always paperwork, if an IVF clinic is involved, if you’re doing it directly with the donor, there’s no legal requirement for particular documents to be signed as a family lawyer, I would always recommend entering into a donor agreement, though.
AD: What would a typical donor agreement look like?
NE: Yeah, so donor agreement would cover things, importantly, such as how the child was conceived, pregnancy, medical tests for the donor STI checks HIV any genetic diseases, it would also cover what relationship, if any, the donors to have with the child, any future pregnancies and who’s going to have legal parental responsibility of the child.
AD: If someone goes to a sperm donation centre, what information do they receive about potential donors, or does it just if it’s if a donation is made, it can go anywhere.
NE: It would depend where that donation has come from. So if you’re going through a clinic, they may have local donors. The background may not be as extensive in comparison to an overseas donor with an overseas donor you get pretty comprehensive profiles of the donor, you probably would get baby photos, probably like five photos from when they’re a baby, toddler, school age, high school, up to being an adult. Get personality testing. You can get aptitude testing. You can hear their voice if you want to, and you can get medical background back to both sets of grandparents. But that’s just based on what the donor has told the clinic.
AD: Okay. That’s very comprehensive.
NE: It’s very comprehensive.
AD: So it’s almost like an album that people can flick through and think, I want someone who’s got dark hair, someone who’s got a good sense of humour, someone who was great at science at school.
NE: Absolutely, you get all physical attributes, what subjects they studied, what sports they played. School results, high school results, it’s pretty comprehensive.
AD: It’s incredibly comprehensive.
NE: So it’s like a catalogue of eligible potential donors to go through.
AD: A lot of people would know all this detail about their partner.
NE: I would say I would say so.
AD: How common is private sperm donation?
NE: It’s more and more common. There’s a couple of Facebook groups that are pretty popular and growing by numbers every day.
AD: Is this just because it’s become easier for people to go it alone when it comes to having a child?
NE: Yeah, I think so. I think it’s more socially acceptable. It’s an easier pathway for people that don’t have fertility issues to go directly with a sperm donor. You know, I think people now are wanting their children to have access to their biological parent if they want that.
AD: And Nicole, I’ve heard of stories where people haven’t been able to sell a goldfish on Facebook because it’s a live animal. You mentioned these Facebook groups about sperm donation. How is that allowed when the goldfish is not allowed?
NE: Yes, look, the groups just facilitating people meeting on Facebook, it’s not actually advertising the sale of sperm.
AD: Yeah, that would be quite an intense ad on Facebook marketplace.
NE: Yeah, look, it’s illegal in Australia anyway, to sell sperm, embryos, eggs.
AD: And goldfish on Facebook, apparently.
NE: Apparently.
AD: What are some of the more common challenges that can come with doing private sperm donation?
NE: Yeah, look, because it’s unregulated you have to rely on the honesty of the donor. If they have any genetic diseases, they may not be known. There may not be tests done, or the donor may not be forthcoming about that. You may not know how many times the donor has already donated and how many siblings there are, what areas they’re located in. So it’s really relying on the honesty of the donor.
AD: I’ve definitely read horror stories of overseas, where it turns out that someone has impregnated is essentially is the father of like half the small town.
NE: There’s a few shows on Netflix around that.
AD: We’ve obviously watched the same shows. If someone does donate sperm privately and it turns out that they have a medical condition that they didn’t disclose, and then that genetically passes to the baby. Are they liable for that?
NE: There’s no cases I’m aware of in Australia where that’s happened and that there’s any liability. There’s certainly some cases in the US where that’s occurred through a sperm bank. There’s been multiple children born with medical issues of a donor and that the donor didn’t disclose that to the clinic.
AD: Does a donor have parental rights after donating sperm?
NE: It’s complicated question. If two people are using a known donor at law in Australia, only two people can be listed as the legal parents on a birth certificate. A known donor then has a legal basis as a person concerned with the welfare of a child to make an application to the court, and that application might include seeking orders for time with a child and to be consulted in relation to decisions. If a single woman uses a known donor, that’s a different story, as only one parent would be on the birth certificate as the birth mother, it leaves the door open to the known donor being placed on the birth certificate as the father and then the legal rights flowing from that would be, as in any other parent and would be liable for child support.
AD: And then they could also say that I want to have a say in…
NE: Absolutely so if they get listed on the birth certificate as the father, then they’re to be consulted in relation to any major decisions in relation to the child, and the time flowing on from that would be the same as could be equal time at some point with a child.
AD: In doing a donor agreement, in order to avoid trouble, people would have to get very detailed right because anything could flow on that it might be, I want to spend one day a month with them, I wanna get to know them, I wanna have involvement in where they go to school or what sports they play. How detailed do these agreements have to get?
NE: Some are very simple, and some are very complex, and it really is a case by case basis. The more time the donor has with the child, and the more involvement, the more basis they have to make a claim in the court for more time, if the relationship between the donor and the parents did break down.
AD: I know for children who are adopted, this can often be a tricky question as they grow older and grow into adulthood, and they might go to a doctor and with symptoms and they might be asked, “Do you have a family history of this”? and it can sometimes be tricky when people go “Well I don’t, I don’t know” What information is a child given in a situation like this, where it may be a case that you don’t know anything about your biological father because they became your father through a private sperm donation?
NE: Yeah, look, it’s very difficult. It would be, I suppose, incumbent upon the child, then to find out from their birth mother as many details as possible who their biological father was, and they would have to then track them down to find that information.
AD: Talking about the wealth of information that can be available to as a prospective mother about the donor, from the photos and the school marks and the looks and the personality traits you mentioned that it sort of comes down to the donor and what they have told, how heavily scrutinised are these responses?
NE: Look, if it’s from a medical perspective in terms of genetic diseases, then that’s gonna come up in genetic testing, responses detailing family medical conditions, as I said you can go back to both grandparents. That’s relying on the donor only, so there’s no other background checks involved.
AD: So that can really range from people potentially gilding the lily about fairly serious stuff, down to more trivial stuff like, “Yeah, I was totally, like amazing at sport at school.”
NE: Yes, and as they get paid for it, particularly in the US, yeah they might want to make themselves look better than they are.
AD: How are people paid for sperm donation? Do they get paid more the more people who use it?
NE: No so particularly in places such as the US, they’d get paid per donation. Each vial might be used, you know, potentially up to eight times in an IVF arrangement, which may result in many, many children. So it’s really just dependent on each donation.
AD: When you’ve spoken about the illegality of commercial arrangements and being unable to either offer your sperm or your womb for a fee, and also a potential parent not being able to pay for that service. How is that policed?
NE: Look, I’m sure there’s probably people monitoring the Facebook groups. If payments are made outside of that, then it would be up to the party being made to make that payment to report it to authorities for it to be checked, basically.
AD: And in a commercial arrangement, if someone was trying to attempt a sort of on the side commercial arrangement, would that then likely be a tax thing, if all of a sudden someone’s like, where did this $50,000 come into your account? You said, Oh, my friend came into some money and offered me some.
NE: Yeah, it might be something that the ATO investigates, if later on you and your partner separate, it might become an issue in Family Court proceedings. A Judge may ask where those funds came from, or where those funds were paid to, and a Judge has the power to refer matters to the DPP for prosecution.
AD: And they can only be when you’re receiving payment in an altruistic arrangement, it can only be medical, transport, necessity payments. So you can’t say, “Oh, I’ve got a more luxurious lifestyle, and I want you to kind of meet some of my, you know, other requirements” or like, I wanna get fancy massages or something like that.
NE: No it’s gotta be deemed to be reasonable expenses.
AD: Nicole, I understand that this is a journey that you’ve been on yourself. Is there anything that you would like to share with people that perhaps you wish that you had known before beginning the process and beginning your family?
NE: Yeah, look when I was starting the journey myself as a family lawyer, I did look around to see what resources were available. I had lots of questions, and I didn’t know any anyone at the time that had been through the same process, and that’s why I ended up writing a book, Lesbians and the Law, a guidebook for Australian families to answer all those questions and, you know, get practical tips of going through that process, so now anybody that has any questions can get all that answered.
AD: Well, Nicole, obviously, for any prospective parent there can be a lot to consider when it comes to using a surrogate or a donor and there’s also a lot to consider for someone who’s thinking of being the surrogate themselves or the donor. So thank you so much for explaining all of that. It’s been wonderful to have you on the show.
NE: No problem. Thank you, Amy.