When it comes to supporting clients navigating surrogacy, the relationships involved will outlast any legal process, writes Sarah Jefford.
Family creation has never been so complex, or exciting, as in the 21st century. The advancements in fertility treatments, and the diversity of families, offer an opportunity to broaden our ideas of what it is to be a family, and to grow a family. The law has some catching up to do, to recognise the diversity in families and the options to have less than, or more than, two parents. Donors, birth and intended parents and children, deserve the same status and clarity afforded to their traditional family counterparts.
I created my family with the help of IVF (and it grew later, without the help of IVF). The decisions we made were entirely private between my partner and me. I then became an egg donor, and a traditional surrogate, and gave birth to a baby for two dads in 2018. I am often asked what it was like, to give away a baby. The short answer is that it was amazing – the long answer might require a few more paragraphs, but it was both amazing, and incredibly complex.
Altruistic surrogacy is legal across Australia, other than in the Northern Territory which does not currently have any surrogacy legislation. Domestic surrogacy is the jurisdiction of the states, with each having its own mechanism for transferring parentage from the birth parents to the intended parents. Surrogacy can be either gestational (where the surrogate is not the genetic mother of the child) or traditional, where the surrogate conceives with her own egg. Both options are legal, except in the ACT where gestational surrogacy is the only option. Many IVF clinics will only assist with gestational surrogacy. The parties attend for counselling and legal advice before entering a surrogacy arrangement.
Intended parents must have a medical or social need for surrogacy, such that they cannot conceive or carry a pregnancy, or to do so would be risky to the pregnant person or the baby. Same-sex male couples can pursue surrogacy in Australia, except in Western Australia which has yet to reform the laws in line with community expectation.
The decision to grow our families with the help of donors or a surrogate, must be guided by two fundamental principles – the rights and best interests of children, and the autonomy and welfare of donors and surrogates. At the heart of any decision to create human life must be consideration of the rights of the person to know of their donor and birth heritage and have access to information about their donors or birth family.
Surrogacy is becoming more popular and accepted in Australia. It is a viable option for infertile people to experience the joys of parenthood. To safeguard the best interests of children and the bodily autonomy and welfare of surrogates, altruistic surrogacy within Australia should be the preferred option to intended parents travelling overseas for surrogacy.
Surrogacy is about so much more than just a baby. It is about family, the human experience, connection and love. Lawyers should focus primarily on supporting the parties to build lifelong relationships for the sake of themselves, and any children involved. It is the relationships that outlast any legal process.
Sarah Jefford is a family and surrogacy lawyer and is the author of “More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates”.