Family values: Surrogacy

Gay men looking to start a family may find fostering unsatisfactory and adoption simply impossible. The alternative is surrogacy, and ahead of Australia’s first national surrogacy conference in May, Andrew Shaw explores the legal, ethical and emotional implications of this complex process.

You were born in India and have an Indian birth certificate. Under international law, your legal parents are an Indian husband and wife, but you have never met them. You live in Australia with your actual parents, two men, who under their state’s law have no legal guardianship over you. Your biological Australian father cannot apply for a parenting order for you, because by bringing you back to Australia he committed a criminal act and could face a huge fine or a prison sentence.

Welcome to the world of a child conceived through commercial surrogacy overseas. It’s a place where state law and Commonwealth practise turn a blind eye to each other; where people eager to start a family knowingly break the law.

There are two types of surrogacy, that process where a woman bears a child in order to give it up to another person at birth. In altruistic surrogacy only the medical costs are paid for – you pay the woman no fee, and as a result she is usually a friend or relative. Most Australian states allow this although it is strictly regulated.

With commercial surrogacy, you contract an agency to help you find a surrogate and the woman is paid for her role. Because many states allow overseas surrogacy but prohibit it within the state itself, this article will focus on commercial surrogacy conducted overseas.

Commercial surrogacy restrictions apply across the board regardless of the sexuality of the would-be parents, which is why Melbourne has been chosen to host Australia’s first surrogacy conference in May: it’s one of the states in Australia that does not have criminal provisions. The conference will feature legal, medical and agency forums for those looking to engage in surrogacy, as well as women talking about why they became surrogate mothers.

Melbourne-based Sam Everingham is secretary of Surrogacy Australia, which will host the conference. Recently, the organisation commissioned research into attitudes of those who sought surrogacy. He found 61 per cent of gay men considering overseas commercial surrogacy were not put off by the penalties.

“The penalties are serious – $100,000 fine or a jail term,” Everingham says. “It is a criminal offence in Queensland, New South Wales and the ACT. But the gay community is very aware that those criminalisation laws haven’t been policed to their full extent and there’s a feeling that it would be outrageous to send a parent to jail or fine a parent for having a child. So most people who are considering parenthood that way, while they’re fearful, they make a judgement call and say the government’s unlikely to police that.”

According to the research, India is the top destination for those looking for surrogate mothers overseas, followed by the US. In the case of Indian surrogacy, the Indian Government has flagged possible changes to the laws that require those entering for the purposes of surrogacy to have a special visa identifying them as such. Previously, men have travelled to India on tourist visas. However, Everingham says this will not ‘out’ parents – “The Indian government’s got no interest in dobbing in Australians to their home states on this issue,” he says.

In fact, it’s this lack of enthusiasm for “dobbing” that makes the current system workable. In the case of India, the biological father(s) of the child travel on a tourist visa to India to arrange for embryo implantation into an Indian woman. When the child is born, the Indian Government does not recognise it – it is in effect stateless, neither Indian nor Australian. A DNA sample is sent to an Australian lab and when paternity is confirmed the father applies for citizenship and a temporary passport for the child to return to Australia. It’s at this point that the Commonwealth could theoretically inform on the parents from prohibited states.

“The only people who look at those visa stamps are the Federal Government – the Customs officials at the airport and the embassies overseas,” Everingham says. “They are Commonwealth authorities and the Commonwealth historically has had no record of informing state governments of these issues. They’re not resourced to do that and they don’t really feel like it’s their job to dob in couples.

“For years now the Australian government’s been processing passports for kids going back to Queensland, despite the fact that the Queensland law says it’s a criminal offence to go overseas and do this.”

With his male partner, Everingham has two girls by Indian surrogates after first rejecting fostering because of its non-permanent nature. He says adoption would have been a consideration too, except laws make the process impossible for gay men in Australia.

“Then we met some couples in Melbourne who’d done surrogacy and we went ahead with an overseas clinic. The surrogate we were using became pregnant with twins at the second attempt.

"Unfortunately they came 26 weeks prematurely. Zach was still-born and Ben went into intensive care and we flew over there to be with him and he didn’t make it. That was very hard.

“We’ve had a number of attempts since then and we were lucky last year, we had two girls by separate surrogates on the same day and they’re nine months old now. You have to be terrifically resilient to overcome some of the trauma that happens along the way.”

Everingham says the relationship with the surrogate mother was virtually non-existent until the end of the process, when they met the husband and wife. “We finally met them about two weeks after the girls were born. It was an awkward meeting, but nice in a way, we could get to know her a bit more.

“I was a bit disillusioned. I was hoping we could have ongoing contact with her, but it’s hard in India because they want to go back to their own families and don’t want to be reminded that they’ve carried for a foreigner. They do it because the money’s terrific: they can put their kids through school or buy a house. But it’s not considered a socially acceptable way to earn money.”

Dave and his male partner live in Queensland. They’re both engineers and Dave is just now taking up contract work again after giving up working last year to care for their daughter, who was brought into the world by a surrogate mother in Minnesota, US. They are expecting another child from the same surrogate.

When they first thought about surrogacy, they considered going the altruistic path, but were put off by the limitations. “Altruistic surrogacy is a bit like Amway,” Dave says. “You know how with Amway the first people you pick on to buy your products are relatives? Because you can’t legally advertise for your surrogate or your donor, you tend to be limited as to who can be the candidate.”

Instead, Dave and his partner looked to commercial surrogacy in the US. They paid their surrogate, who is married and has children of her own, US$30,000 to carry their daughter. All up, the process cost some $200,000; although the second time around, being experienced, they have been able to reduce costs.

“It’s a bit like dating, finding a match,” Dave says. “We were matched through an agency, then we had a telephone conversation for about an hour or so. We both decided that even though we would do it, we’d like to meet. We travelled to Minnesota and the moment we arrived we were so welcomed. Their two year old was having his birthday and we got to meet their extended family.

“The next time we met was when the embryo transfer was taking place, we were in the doctor’s surgery. We were there from the moment [our daughter] started life. The next time we travelled over for the 20-week ultrasound, we got to see the baby developing. In between we were given scans and updates, then finally we go over for the birth.

“It was a conventional birth. The one thing she asked was, ‘Can I cut the umbilical cord?’ and I said yes. It was her experience and I thought it was important for her to go, ‘Now I’m disconnecting you and handing you over to your parents.’ For her, that was closure, it was the end of that part of the story.”

Dave describes the surrogate mum’s role in his daughter's life as “like an aunty”. When they travelled over to check on their second child, also being carried by her, they took their daughter too. “The interesting thing was [the surrogate mother] wasn’t clingy at all with her, I was looking to see how clucky she was – but no, she wasn’t.”

It’s for this reason, Dave says, that it pays to go through an agency in the US. Women who may not be psychologically equipped to bear and then give up a child are screened out of the system.

Unbelievably, although he and his partner are the child’s parents, he cannot apply for a parenting order because of the illegality of what he has done under state law. “Yes, you can be fined, have a jail term, have a criminal record,” he admits. “Did we think that would happen? No. Because even though the Family Court says we’re not the parents – and still does to this day – when you’re coming back through the airport they don’t discriminate. The baby comes back as a tourist, with a US passport. When she is born she is a US citizen. We [had] three months for her to become an Australian citizen. The Federal Department of Immigration doesn’t discriminate – we put down ‘parent one’ and ‘parent two’.”

Under Minnesota law Dave and his partner are named on their daughter’s birth certificate as her parents. When they travel there, they become – legally – her parents. When they return home, that entitlement vanishes into legal thin air.

“The law is what it is,” Dave says. “But the Federal Government, or at least the departments, don’t want to create an incident or make a child stateless. At the end of the day, even if the Family Court did get involved, they would say, what is in the best interest of the child? I’m 99 per cent certain that the Family Court would say my partner and I are the best people to be looking after our daughter.”

National Surrogacy Conference, Melbourne, May 26-27, 2012. Registration and details: surrogacyaustralia.org

STATE OF THE NATION

Commercial surrogacy in your state:

Queensland
Legislation: Surrogacy Act 2010
Status: Commercial surrogacy banned anywhere in the world since 1988.

New South Wales
Legislation: Surrogacy Act 2010
Status: Commercial surrogacy banned anywhere in the world for those who reside in or are domiciled in NSW and who have not entered into a surrogacy contract as at 1 March 2011.

Australian Capital Territory
Legislation: Parentage Act 2004
Status: Commercial surrogacy banned anywhere in the world.

Victoria
Legislation: Assisted Reproductive Treatment Act 2008
Status: Commercial surrogacy banned only in Victoria. It does not ban Victorians from accessing overseas commercial surrogacy clinics.

Tasmania
Law: Surrogacy Contract Acts 1993
Status: Altruistic and Commercial surrogacy banned only in Tasmania. The Act does not ban Tasmanians from accessing overseas commercial surrogacy clinics.

South Australia
Legislation: Family Relationships Act 1975
Status: Commercial surrogacy banned only in South Australia.

Western Australia
Legislation: Surrogacy Act 2008
Status: Commercial surrogacy banned only in WA. However, WA regulator threatened with prosecution those mentioning overseas commercial surrogacy clinics.

Northern Territory
Status: Commercial surrogacy legal (but non-existent), it is legal for Territorians to access overseas commercial surrogacy clinics.

Source: Surrogacy Australia

IMAGE: Sam Everingham (right) and partner Phil, with their girls Zoe and Ruby.