Episode 127 – Monica Blizzard – Lawyer

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you

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Welcome to Surrogacy Australia’s podcast series. I’m your host Anna McKie. Thank you for sharing your time to listen to this episode. These recordings are from the regular one-hour free webinars that I run, which I invite you to attend if you haven’t already. They take you through how surrogacy works in Australia, including how to find a surrogate or intended parents. There are opportunities to ask questions and you hear from a co-host each time about their own journey.

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This episode, recorded in October 2025, was different to the standard webinar series as it featured lawyer Monica Blizzard. Monica Blizzard leads the KHQ Lawyers Family and Relationship Law Team and is an accredited Family Law Specialist with the Law Institute of Victoria. She has nearly 30 years of experience and 10 of that is in field of surrogacy. Her work in this field aligns with her own family creation due to needing IVF.

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This lived experience means she understands what it’s like to have limited options and a challenge to her fertility. If you’d like to arrange your own session with Monica, you can find her on her firm’s website, KHQ Lawyers. This episode was also recorded in partnership with Australian Surrogacy and Donor Week. This was the second year of that event and the plan is to continue that partnership in the future. Keep an eye on their website, asdw.au.

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and join us in their national Facebook group for ongoing support named ASD Australian Surrogacy and Donation. In this episode, we mentioned SAS, which stands for Surrogacy Australia’s Support Service, which I manage. If you’re looking for more individualized support, to be connected with a mentor and as IPs, intended parents, to be potentially connected with a surrogate, head to Surrogacy Australia’s website to register. SASS is also open to teams who know each other before surrogacy.

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and they would like to join for the mentorship, agency support for the IPs and the surrogate, and to have me as your guide. You might think of me as your Siri for surrogacy, or as people in the community have called me, your chat GPT. I hope you enjoyed this episode, and please reach out to myself or Monica Blizzard if you have further questions.

02:27
Alright, Monica, so going to hit you with the questions and I’m going to read them out loud for anybody that’s listening to this as a podcast later on. So the first stage I would see of the legal advice would be when people are thinking about it, probably mainly the intended parents, but sometimes the surrogates. So I’ve got here, we’re looking for a surrogate or we’ve recently had an offer from someone to be a surrogate. So some questions people would ask is when should we see a lawyer? What should we look for in a surrogate lawyer, be it for the IPs or the surrogate? And are you able to be the lawyer for us or our surrogate if we live interstate? What can you tell us? What a great question.

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going to give you a typical lawyer answer and that is you should be seeking legal advice as soon as possible. you’re contemplating surrogacy, it is a complex area. Each state has different legislation. Although general principles are similar across most states, there are details that you need to be across and you need to ensure that you’re compliant with the legislation. Independent legal advice is mandatory for all parties and if you don’t get it and you don’t get it at the right time, then it’s going to impact your ability to proceed.

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with the surrogacy arrangement and um indeed to be able to get a transfer of parentage. So if you’re going to think about doing this you should engage with a lawyer as soon as possible. Most lawyers will pick up the phone and have a general chat to you. I often speak to clients at no charge just for half an hour on the phone and I’ve had quite a few clients actually just call me for random questions regarding surrogacy without having the detailed advice but initially you’re wanting to understand what are the obligations, what are the risks and then what are the steps that you need to be taking.

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to proceed and so that should be done as soon as possible.

04:00
And when I’m advising a client around surrogacy, I’m really wanting to talk to you about the requirements of the state. So I’m based in Melbourne, but I have done interstate surrogacy arrangements. And in fact, Anna, I was talking to you earlier, I’ve had arrangements where I can think of two actually, where the intended parents were in Melbourne, the surrogates were interstate. And it’s really important that you understand that there are differences between those states. So you need to know that from the outset. So I’m trying to talk to you about

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what’s involved in terms of the steps, what my role is as the lawyer and the legal advice that you need. I’m really enforcing the rights and the obligations of the parties. I’m mostly encouraging you to get a surrogacy agreement. So there are states where you’re not required, in fact Victoria’s one, you’re not required to have a surrogacy written agreement. But as a lawyer and knowing that these agreements are not enforceable, it’s actually vital that you’ve fleshed out all of the important issues that are involved in a surrogacy arrangement.

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You’ve thought about all of the complications that could come about. have, you know, you’re covering a lot of this in the counseling stage as well. And there’s a real benefit, I think, to having it confirmed in writing. The things that are important to you that you might have had the other party compromise on, you want them confirmed in writing. You want some requirements and restrictions, I guess, all documented. You want to have clarity around financial obligations. You know, the law’s very clear.

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about reimbursement for actual expenses incurred and you want to make sure that you’re compliant with the legislation and if you are that everyone understands what that looks like you don’t want uh something popping up down the track that wasn’t addressed or wasn’t discussed and wasn’t clear. You want to talk about

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what happens if things change? What if there are complications with the pregnancy? What if there’s complications in the intended parents relationship? What if one of the intended parents might pass before the pregnancy comes to full term? There’s lots of potential complications that might arise that you need to be talking about in counseling. And if there’s agreement on those issues, they should be documented in writing.

06:02
um So what are you looking for in a surrogacy lawyer? Well you’re for someone who knows what they’re talking about. You’re looking for someone who has experience in this area, uh experience in the state in which you’re in. So you can ask and there might be lawyers who are willing to work nationally in a sense or work in different states even though they’re not based in those states. But they may also be few and far between. There aren’t a lot of specialist surrogacy lawyers.

06:27
So you need to get someone who knows what they’re talking about. You need to get someone who knows what’s happening in your state. And ideally, you also need someone with a family law background. So if there are complications, if in a worst case scenario, the child isn’t relinquished to the intended parents, the next step is to engage in a family law application, a parenting application.

06:48
That is also complex. So you want a lawyer who has the knowledge in the background regarding that aspect as well. I think that answers that slightly, Lana. Yes, absolutely. Oh, good. Absolutely. think that’s fantastic. Really helping people at the beginning to go uh never too early to seek legal advice. Never. And I think it’s a great opportunity for people to go, OK, I don’t have to do much yet, but I’ve now met that lawyer and

07:11
I feel comfortable talking to them and now I’ve kind of got them as a contact that I might now be able to ask them the odd little question along the way because I’ve had a session with them. They’re kind of in my pocket, so to speak, as a bit of a guidance on this journey and somebody that’s invested now in them and their journey, I guess. And I should say the people who work, it’s a very small area of law.

07:31
It’s a very specialised area of law and we know the other great lawyers who work alongside us. So there is that requirement for independent legal advice. So if the intended parents might be coming to see me, for example, I can give some recommendations of who the surrogate might be able to see. And so that can really streamline the process as well. Yeah, that’s true, actually, because over time you get to learn about who you work in a good pairing, a good team with, guess. Exactly. Exactly. That’s great.

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And just in terms of those recommendations for SASS teams, we have a portal and intranet and within that is a list of lawyers and counselors in each state who specialize in surrogacy. So that’s something that we could help guide people onto. Fantastic. A second section here. So then this is for written agreements. So what I’ve got there is that we have a surrogacy team and we’re getting ready to do that counseling and legal parts of surrogacy. And so some of that you did already start to mention. So.

08:21
Some things to contemplate. What are the next steps? So we need to find two lawyers. What does or should an agreement cover? What are reasonable expenses that we can cover for our surrogate and are those agreements enforceable? I’ll also head this off to maybe once you’ve got through that from a surrogate’s point of view, I might come in and just pop in a few extra challenging concepts. Right. In terms of what does it really look like? Yeah. You tell us.

08:47
legal point of view? Sure. Look, the first thing I want to say is that it shouldn’t be all on the intended parents. So that requirement for independent legal advice is important. So you could be giving the surrogate some options in terms of lawyers. So I’ve got two or three lawyers that I could recommend to the client who’s come to me in terms of who the other party should see. So that does need to be independent. What does an agreement cover? So just a reminder that it’s not a requirement in every state to have a written surrogate.

09:17
agreement. The lawyer and me probably says to almost every client I meet, you’re better off having something in writing than having nothing. I would say that too. I mean, sorry to cut you off there, but yes, in Victoria, I know you don’t have to. But as I say in my regular webinars, it is best practice to have them because not only it’s actually part of the process of thinking about it all, it kind of goes hand in hand with the counseling. When you’re talking about all of these what if scenarios and then in some ways you revisit them in somewhat with your lawyer in a legal sort of framework. And but you’ve already brought

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them up and counseling. So just sort of really helps solidify what the enormity of this project is. So I think it’s quite powerful to do legal work. So we really do recommend everybody does it. Yeah. And I think it’s also great evidence. If there’s a family law case that follows in that worst case scenario, you can produce that as evidence of the intention of both of you. And that can be very powerful evidence in a case. think flushing out those issues that you’ve already reached agreement on or you’ve already discussed at length in counseling. I mean, that’s one thing, but committing it to writing both of you.

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seeing lawyers and then signing an agreement, is this extra level of commitment, I think. And I think it sets you up for success. It’s less likely, I think, to fall apart when you’ve taken those steps and you’ve, you know, paid that expense and you’ve gone through the motions and you’ve restated your intentions. In terms of what a surrogacy agreement should cover, there’s really basic issues, obviously, that we’re covering. But what I’m initially saying to a client when I’m meeting with them is talk to me about what the agreements were, what the issues that you really discussed

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that were important to you in those counselling sessions and then we’re sort of stepping through all of those. So we’re probably starting off with the basic arrangements and the factual matters and then we’re moving into obviously the intention of all of the parties to enter into the surrogacy arrangement that the intention is the child will be relinquished upon birth. We might be talking about the arrangements leading up to the birth. We might be talking about who’s attending the appointments, the prenatal appointments, who’s in the room during the birth.

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Sometimes I’ve included reference to

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breastfeeding arrangements and things like that. So yes, it’s a legal document, but it can have that level of detail because these things are important, but it is sort of covering off the legal requirements as well. So we’re talking about the intentions, then the legal steps, the requirement and the consent, I guess, that’s embedded in the agreement that the surrogate will be transferring the legal parentage upon the birth of the child or shortly thereafter. We are talking about obviously the financial obligations. That’s a big one.

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to make sure that you’re compliant with the legislation in each state and sort of thinking about them setting out a procedure of how that’s going to work and just resetting expectations because I think that’s one of the issues where there can be a lot of complications if expectations aren’t clear. You know sometimes we’re talking about a payment method or a schedule of payment we’re focusing on the reimbursement there. The medical appointments, sensitive medical decisions, we might talk about what happens if an intended parent

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couple are separating either during the pregnancy following the birth or before the transfer of parentage? What are the expectations around communication? Some clients, I had a client recently who was talking to me about privacy issues and social media, so that came up. Contact after the birth.

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dispute resolution. So sometimes it’s really important to just talk about what happens if things do break down, how we’re going to try and resolve those issues. And then really, yeah, the insurance or post-birth arrangements, they’re the main things that we’re talking about. In terms of the reasonable expenses that we can cover, again, it is a state by state situation. In Victoria, the law is really clear. So the surrogate can’t receive any material benefit or advantage, say for reimbursement of prescribed costs actually incurred. And that really includes the medical expense

13:01
specifically not recoverable under Medicare or health insurance. That can include reasonable counselling expenses associated with the surrogacy agreement, the costs associated obviously with the pregnancy and the birth, the legal fees associated with the surrogacy agreement, reimbursement for earnings lost as a result of taking unpaid leave, but that’s not to exceed two months from the time of birth or when the birth was expected to occur, or in other circumstances if for any period the surrogate was unable to work on medical grounds. Insurance premium

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for healthy life or disability insurance. And I think in part of that conversation, it’s really important to keep receipts and it’s really important, I think, to document the reimbursement aspect as well.

13:43
What can’t be paid is really important. This surrogacy agreement won’t be lawful if the mother is paid or the surrogate mother is paid any money other than being reimbursed. So you can’t really, mean, the gifts is a really interesting part of this. It’s also a complex aspect. And so I’d sort of encourage um and document that that’s falls outside, I guess, of the reimbursement. And you don’t want it to fall into the category, obviously, of commercial surrogacy, which is illegal in all states.

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you’ve got to be very very careful about the reimbursement and the payment. uh

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expenses uh and that’s really part of the legal advice piece to understand that very clearly from the outset and then to set everyone’s expectations. The final question is the big question and that is are surrogacy agreements enforceable? And the short answer is well no they’re not, they’re not legally enforceable in Australia and there’s a number of reasons why they’re not. The only thing that you can enforce through the surrogacy agreement is the reimbursement of expenses but basically if the surrogate does not relinquish the baby following the birth and doesn’t follow through with the agreement

14:47
around the surrogacy arrangements, then very quickly a family law application needs to be made in the Federal Circuit and Family Court of Australia seeking that the child is placed in the care of the intact parents. So that surrogacy agreement would become the centre of the evidence that you really refer to and rely on in those court proceedings. And ultimately the court will decide that case based on what’s in the child’s best interests. obviously genetics is one factor that’s considered and the court’s really going to look at the circumstance of the parties at the time. So it’s not in

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forcible, but it’s a very important part of the evidence piece in terms of what happens in the future. And I think it’s also really important, and you might want to talk about this, but there hasn’t been any cases that I’m aware of a surrogate actually.

15:30
not relinquishing the child at the end of the surrogacy process. And I think that potentially is very much linked to the fact that we are often seeking surrogates within known circles and we are complying with the requirements of counselling and we are, know, the processes we have in place are very much working in terms of ensuring that those relationships are healthy relationships, they’re positive relationships.

15:52
And everyone’s there for a reason and they’ve got great intentions. So the risks of the surrogate withholding the child, looking at what’s happened until now are relatively low, but it is a risk and it is something everyone needs to be aware of.

16:06
Fantastic answers. I’ve been taking notes because I’ve realized how many extra questions I want to ask you. Some of them are coming up in future questions, but I’ve got notes. think it’s as we move on to the next section, what I will say is I think it’s very normal for IPs at the beginning to have this fear that a surrogate might want to keep their baby as a surrogate myself. And having been involved in the surrogacy community nationally for nine years now, let me reassure you surrogates do not.

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want to keep your baby. We do not want any more children, thank you. We have finished our own family, but we don’t want to be stuck with any more. We are doing this to see you become parents, and that is the joy and the gift that we can give you, and that’s what we’re doing it for. So no, surrogates don’t want to keep your baby, but to hear me talk about that more, come to a regular webinar or even start uh listening to other parents talk about it and other surrogates and you’ll…

16:57
get that fear put at ease. But I’m gonna drill deeper into that a little bit later on because we’ve got a section on classic concerns and that’s still one of them. So we’ll come back and say a little bit more.

17:07
So then we move on to the third section. So we’ve done the legal agreements and then, and the counseling, gone through the IVF clinic, got pregnant, had a baby, and now we come to the second part of the legal work. And so this is where the intended parents, we go back to the lawyers that the intended parents use. So I’ve called this third section post-birth or parentage order. So yay, we had a baby, what are the next steps? And so some questions to answer. As IPs,

17:29
When, if ever, do we get our names on the birth certificate? Because for people that don’t know, on the first birth certificate goes the name of the surrogate and her partner. Do we need to keep all of our receipts for surrogacy related expenses for the parentage order? And is anyone ever denied a parentage order? And if so, why? Just before you answer that, just in terms of the related expenses, because I was gonna say that before, for SASS teams, we have something called an expenses calculator that I’ve created, which sort of estimates some of the…

17:55
expected costs and gives ranges and averages. So the teams can work through that document because talking about money is uncomfortable for teams because that’s the transactional part of surrogacy and that’s not why we’re doing it. And so if we can help remove some of that anxiety about talking about money, having a third party help with that or a document is a great way. And we also recommend the surrogacy teams to have a debit card. So the surrogate taps a card that’s connected to the IP’s account. One way of keeping track of receipts is if you set up a separate account in with your bank.

18:25
that’s just for surrogacy and then the surrogate’s got access to tapping her expenses for that. That’s one easy way of keeping all of the expenses in one separate document. Would that be something that you would recommend to teams as well? similar? I know that clients have certainly done that and there’s a level of trust there, isn’t there? That they’re only going to be using it when at the right time for the right things and all of that kind of thing. no, keeping records is absolutely imperative. Absolutely imperative. You need to show that you’ve been compliant given the restriction on commercial.

18:55
Sorry to see, and there’s a clear requirement that the surrogate can’t have a material benefit. Correct. And we often talk about how if it looks like a gift, it’s probably a gift. If it looks like a monetary payment, like a car or a Hawaii holiday, it’s probably a payment. One thing I would say to teams is if we were friends and you were to buy me a birthday present, it’s still okay to buy the surrogate a birthday present if she’s your friend. And so there are some of the things along the way that you can.

19:21
gift in reasonable ways that are just not too excessive. Just when you mention though about keeping records, I don’t know of teams though that necessarily rock up to court with all of the receipts. Like that’s necessary? Is it more the type of thing that if it was called upon?

19:35
Yes. You need to be able to access it but you don’t have to document every tiny thing. I think it’s more about just keeping records as you would for your tax or as you would for a child support claim or anything like that. It doesn’t mean, I mean, we, I’ve never really referred to the receipts in an application for a transfer of parentage or anything like that. You’re talking about the process in the surrogacy agreement and with the transfer of parentage, you know, you’re not

19:59
You’re referencing compliance with the legislation, but yeah, no, you’re keeping it there just in case. You’re keeping your records as you would for anything else that’s important in your life.

20:08
anything else legally that might have consequences. But I don’t think it needs to be extreme. And I guess I also want to just reinforce that I sort of view my role in these arrangements as relatively minor. I’m providing advice at the outset and then I’m helping with the transfer of parentage in the final stages. But really the intended parents in the surrogate are doing all of the hard work and people like you are doing incredible work in supporting them along the way. The lawyer’s role is relatively minor. It’s interesting though because

20:36
I’m just trying to imagine people at the beginning of the how they might feel and I you and I know yes it’s relatively minor in this sort of two-year project but when you mention law and legal stuff it puts fear into people doesn’t it and it feels scary and they want to do it right and and so there’s this sort of fear that oh we want to do it right in case we get told off at the end and we and we don’t get to transfer the parentage so there is this sort of fear factor I imagine. think what I love about the theory of law is that I’m always the bad news person so

21:03
My job is to be the worst case scenario. look at anything and I have to tell you about what could go wrong. But you know, there’s something pretty wonderful about starting this journey with intended parents or surrogates and then ending with a family and.

21:16
with such positive news. It’s pretty incredible. In South Australia, we get to go to court for five minutes and to the family, you know, where all the divorces happen. And that’s quite a milestone for teams to get to go to court with their lawyer and for the judge to, you know, see that everybody has come together of same mind to commission this child. And it’s a beautiful moment. Sometimes the judges come out and have a photo and it’s a significant moment for teams to all come together and have that moment in court. I imagine for you as the lawyer too, to get, as you say, to be a part of that team and see

21:46
baby at the end, it’s a very joyful part of your job. Yeah, I my first transfer of parentage application was exactly that. You know, the whole family got to sit with me on the bar table, the judge kind of came down and sat with us as well. There was a certificate and there was a teddy bear, there was, you know, it was really informal, it was really heartwarming and an incredibly positive experience and something unlike me as a lawyer have.

22:08
I haven’t experienced much of that in a courtroom before. It was pretty great actually. So it can be intimidating, think, seeing the lawyer and getting the advice. But I think once you understand what the parameters look like, what the restrictions are, then hopefully the journey from there is very clear. Yes. Yeah. And then hopefully positivity at the end. um So in terms of um when are the intended parents being placed on the birth certificate? uh

22:34
So the law is really clear on this. There’s a presumption of parentage that applies upon the birth of the child and the surrogate and their partner are considered to be the legal parents at that point. But each state has requirements for transfer of parentage. And in Victoria, that’s an application that’s made between 28 days after the birth and before the child is six months old. And obviously the child has to be in the care of the intended parents at the time the application is made.

23:01
From my point of view, it’s not a complicated application, the transfer of parentage, it’s an application that seeks the court make the orders. And then there’s…

23:10
affidavits from the intended parents and then there’s affidavits from the surrogate. So an affidavit is a legal statement and it really just would cover the arrangements, the compliance with the legislation, the compliance, the patient review panel approval from the outset, the legal advice requirement complied with from the outset and things like that. And then you have to address, I guess, what’s happened since the birth as well and the arrangements that are in place and they’ve been complied with.

23:38
So it’s not a complex application. The affidavits really just tell your story from the start of the process until the point at which the application is being made. And then once the order is made, the birth certificates reissued with the intended parents named on the birth certificate. So it’s really quite a streamlined, simplified process in terms of certainly what I deal with.

24:01
other family law matters. think we’ve addressed the receipts. I do advise that you keep them. Just keep records. Just have a draw that you put

24:09
men or they’re electronic these days or we have most things are now recorded in our bank statements so that shouldn’t be an onerous requirement. Has anyone been denied a parenting order? Well the answer is absolutely yes and the major example that I have of that is where there have been commercial surrogacy arrangements. So there are a number of cases where commercial surrogacy arrangements have been entered into overseas and an application has been made and that has been refused on the basis

24:39
that it was not compliant with the law. There’s other cases where uh a parentage order might have been refused and that might be where a surrogate may have withdrawn their consent or where the court had concerns that the legislative requirements weren’t complied with. So that’s really important. you said the ones that had been denied, they were the ones that had gone overseas to do surrogacy. Yeah, I mean there’s a number of cases. I mean know we’re talking about state-based transfer of parentage. I guess I’m looking at it more broadly. Because what happens

25:09
when you have an overseas commercial arrangement, sometimes you’re coming back to Australia and you’re requiring an order that allows you to make decisions as parents for the child and so that can be refused and it has been refused. But in terms of the transfer of parentage under state law, I it’s really focusing on has there been consent for all parties and have you followed the criteria? Have you followed the requirements under the legislation? What happens if you couldn’t get a transfer of parentage order? I mean you could apply for an order under the

25:39
Family Law Act for parental responsibility, which is decision making powers for children.

25:44
It’s not the same thing as a transfer of parentage. And obviously there are situations where you might be able to bring an appeal, something like that. I haven’t had any cases that have been denied, I have to say. have you, Anna, have you had any? No, there’s just a few slightly sticky ones that have happened over the years, but they were complicated journeys in Australia as they were going and relationships breaking down. That’s often the main thing that happens. I mean, I could go into more detail of the little bits that I know. It’s fascinating.

26:14
we should keep it more broad for now and we’ll see how we go for time. I’m conscious that there’s a couple of questions that have been typed in about commercial surrogacy and this stuff so we’re going to leave them to the end because we’ll make sure we get through all the Australian surrogacy stuff first, see how we go for time. Sure. Right so then I think generally answered that parentage order section question but if people have specific questions about that that we haven’t got to feel free to type them in. Some of the general concerns, some of the classic questions we get asked are will the surrogate ask for money? Are we allowed to buy our surrogate a gift? What are the

26:44
common pitfalls to be wary of and what if the surrogate wants to keep the baby? I think I’ve already sort of said that no surrogates don’t want your baby. I guess if my first thing I would head up is if in during the chats, perhaps if it’s a surrogate that you didn’t know before, there are dodgy surrogates and dodgy IPs, I will say that. And if the chats that you’re having with the surrogate…

27:02
don’t feel right, like she’s sort of the way she’s talking about potentially being your surrogate sounds like she wants a lot more financial support. If it doesn’t feel right, then it doesn’t feel right. So I think that’s why it’s important to take some time to talk about this as a team and have the counselling. Would that probably be similar advice you might give there, Monica? Absolutely. think that, I mean, I think the fact that we haven’t had any surrogates not, not, not wish to retain.

27:27
The child of a surrogacy arrangement in Australia really speaks to the fact that the regime that we have, the processes that we have in place really do work. think the councils that do this work are incredibly experienced. I think the process of everyone having legal advice, really does. Hopefully the red flags are raised early before anything happens. So you’re not dealing with the red flags.

27:48
at other end of the scale you’re dealing with it beforehand and sometimes those arrangements do fall apart. I had a couple who were entering into an arrangement with the surrogate and they got to the final counseling session and something just felt wrong and then the surrogate effectively ghosted that couple and sort of disappeared and I couldn’t, my advice to them was look it’s probably a blessing that we found out now you know because they’re hard quits.

28:13
questions obviously brought something out in her that meant she didn’t want to be part of the arrangement in the end anyway. So I think if the surrogate is asking you for money and it’s outside of what you’ve agreed or you’ve discussed in counselling, that’s a massive red flag. So it’s possible the surrogate will ask for money, but you should have dealt with that. You should have had the advice from your lawyer at the start, what that looks like in your state, what your legal obligations are, then it should have been addressed potentially in the counselling. It should also have been addressed if you’ve entered into

28:43
a surrogacy agreement. So the parameters should be really clear. I think you’ve addressed are we allowed to buy our surrogate a gift? I can’t see anyone being prosecuted for buying a surrogate a gift for their birthday or you know something that you would ordinarily do for someone you care about or someone who’s in your inner circle in life or you know it seems pretty incredible and this is really about calling it a gift but it being something else. I think that’s really what we’re talking about here.

29:11
a substantial financial benefit that you’re calling a gift. Yes. Does that make sense? Yeah. And sometimes it’s handy to talk to other IPs and surrogates in the community to hear what they did for their team so that you can lean on the wisdom of others that have gone before us. Sometimes that’s just the peer support is just as helpful as the counsellors and the lawyers sometimes. Absolutely. And trust your instincts, I guess. What if the surrogate wants to keep the baby? We’ve sort of we’ve sort of canvassed that a couple of times, but so there hasn’t been reported cases. I mean, I think the bigger that this community

29:41
becomes and and you know there’s reform on the horizon and there should be I mean that’s another conversation there should be reform on the horizon as far as I’m concerned it’s unnecessarily complicated that each state has separate laws on this

29:55
And I don’t know about you and this might be a whole other conversation, but my personal view is that commercial surrogacy regulated should be considered at some point in the future in Australia. There are cases overseas where surrogates have retained the baby. So there’s a lot of horror stories if you want to look at them overseas. They haven’t occurred in Australia. And as I said, I think there’s really good reasons why that hasn’t. And I think our process works quite well. It’s limited.

30:20
But it works quite well. Yes, I’d agree with that. uh OK, we’ll push on to our last slide and then we can go back to bit more chats. um Some questions that often arise about donor eggs, sperm and embryos. If they’re engaged with an egg or a sperm donor to make embryos, ah is that?

30:37
Does that bring some legal questions? Things like, can I use a known donor, egg and or sperm? Can I use an unknown donor? That might mean the World Egg Bank and somebody I can see has typed in a question about that, which I might read out as well. Do we need an agreement for that? And is that agreement enforceable? Can you speak to any of these things? Any of you? I mean, can absolutely speak generally about it. mean, you can use a known donor.

31:00
obviously um with conditions. It’s really important that donors, that their information is recorded, that the information is available on the child reaching the age of 18. So there’s legislative requirements around using donors. I recommend donor agreements. I’ve worked with a lot of sperm donors, a lot of families that have used sperm donors. And just as I’ve recommended surrogacy agreement, I’ve also recommended donor agreements. And I think

31:29
with sperm donors it can be quite complicated. If the sperm donor is a known person, close person in your life, or if the donor is involved in an arrangement where there’s a single surrogate or a single uh intended parent or something like that, it can be very complicated in terms of the role of the sperm donor. So if the sperm donor initially has protection as not being a parent, but if that person becomes very involved in the life of the child, uh

31:57
The lines can be blurred. So I think having a written agreement the same way that we look at sort of surrogacy arrangements can be very important. Having clear guidelines, intentions.

32:09
having legal advice, understanding what the risks look like, understanding what the parameters are. All of that can be very important to making sure that the pathway is clear and is uncomplicated. There are fertility clinics that work with international egg banks. I think City Fertility has recently partnered with the World Egg Bank. There’s obviously restrictions around how often you can donate and things like that. So if you are using donor eggs for surrogacy, obviously it’s important to think about the surrogacy legislation in the state in which you’re living

32:39
things like that. So in Victoria, the MUR transfer has to take place in Victoria.

32:44
again to flow through with the parentage application after the birth of the child. So there’s a number of issues here that we can talk about, but unknown doesn’t mean anonymous. I guess that’s the big thing. So it’s really important to understand that. I think it’s important to, if you’re working with an IVF clinic, to talk to them about who they work with and what the arrangements are. Everything varies state by state, so it’s important to again get that legal advice. So I think working with

33:10
fertility clinics obviously makes that a bit clearer and a bit more seamless. Obviously this counseling that’s important and part of that process and obviously the information relating to the donor can be made available as well. think that’s sorry that’s probably a roundabout way it’s a big conversation this conversation about donor. It is yes. Yeah it can become quite complicated. It can yes. Two things I think to say there is so I’ve been an egg donor three times. you? Yes. two of the

33:40
teams were for surrogacy. So the mum needed an egg donor and a surrogate to help her become a mum or become a mum again. And also I think in everything we do here, we need to keep the best interests of the child forefront of what we do. So in Australia, as much as possible, we would encourage knowing egg and sperm donations, partly so that the child has access to, well, I’m their genetic material. And so yes, we all keep in touch. I’m coming up to Brisbane for the Gala night for the surrogacy and donation awards this week.

34:10
Friday night I’m staying with the Queensland family that I donated to so their little girl is six and a half now and so even if you’re not in regular contact it means that you’ve got access to the person and so when your child gets older and they’ve got curiosities uh you know that you can maintain that contact and I really like what you said there about unknown does not mean anonymous and I think that’s really important because uh people some of the questions

34:33
that have been typed in is that some concerns about does that count as being commercial if we go through one of these agencies? It’s about asking the questions about is their donor able to be contacted at certain ages? Is their information released? Those sorts of questions that come up there. That’s possibly a good time for me to mention a couple of um podcast episodes that people might.

34:53
look up where I’ve had intended parents on or parents through surrogacy. So I can think of an episode, uh Dad Tim, he they were a SASS team. So I matched them with their surrogate. They actually used a donor in America and they actually went over and created the embryos in America at an IVF clinic there and took their surrogate over to do the embryo transfer there.

35:13
but that still worked under our laws. So, wow. And then another dad, Josh, if people look up his episode, their surrogate was Fiona, their podcast episodes are back to back, but they did use the World Egg Bank. And so that’s an episode to listen to about surrogacy teams who have done that. So I hope that helps to answer some of those questions for some people. It’s getting more and more complicated, isn’t it? But I think the reality is that it’s hard. It can be hard. I mean, you can speak on this more than I can, but it can be hard to find surrogates. It can be hard to find egg diets.

35:43
it can be hard to find sperm donors. We’re all doing our best, aren’t we, to navigate the system that’s really overly complex. I’d encourage people, share your story. never know. Donors actually step forward more often than surrogates, I would say, because it’s a relatively shorter process to be involved in, although the long-term implications are there genetically, of course. Tell your friends and family about…

36:02
these needs and you just never know who might step forward or it might be a friend of a friend that steps forward there. We have lots of questions. So let me go to a couple, but I’ve also got some that I want to ask. So excellent. I’m going to ask these questions because I have a couple of friends whose surrogacy teams have fallen apart since post-birth. And so these questions are really forefront in my mind as to what’s happened there. Let’s say the parentage order has been granted, but there are still some ongoing medical expenses that are related to the pregnancy

36:32
the last pregnancy that that surrogate had some medical complications. I mean, I could go into detail if we wanted. Yes. That when the IPs get to draw the line in the sand in terms of when do they have to stop being accountable for some medical expenses, is it once the parentage order is done, financial obligations are done technically legally, but is there is some level of

36:53
But in your heart, what is the best thing to do? That’s interesting, isn’t it? I think that’s complicated. I think it depends on the circumstance of the case. mean, if you think about potential complications, obviously there might be physical complications. There could also be mental health complications that follow for a period. It needs to be reasonable. Reasonable, good word. Reasonable. It’s a great legal term and it makes it very grey. Yes. I think this is really why

37:21
those issues have to be canvassed from the start. And if you can agree, and certainly the lawyer and me would want to say, you know, things beyond 12 months after the birth, I think would not be reasonable. Things a few months after the birth would be reasonable, but they need to be clearly related to the sorority arrangement to fall within the legal requirements. Definitely. Does that make sense? Yeah.

37:43
Perfect sense. And that comes down to hopefully having a good team and continuing open communication together to talk about it. So for example, I got hit with postnatal depression after surrogate bub. And so as a team, I needed ongoing psychology sessions. So I got a mental health care plan with my GP, but then there was a gap and I was having Zoom sessions with one of the surrogacy counselors. And so the deal was, as we would recommend to SASS teams, a year post-birth is that sort of…

38:09
rounding it out phase for the surrogate to have access to counseling. so I had it very frequently in the few months post-birth and then it eased off and then I had a session, you know, just after the first birthday to sort of celebrate how far we’ve come type of thing. And so that was a reasonable expense because the postnatal depression was directly related to the birth of that baby. And so, yeah, our team had some hard conversations. We had some, we certainly had conflict, but we were able to resolve it and keep talking there. So reasonable. That’s a good word.

38:37
reasonals are great words. uh I might answer some quick ones or you can add in two. Somebody says how does loss of wages work if the surrogate is a stay at home mum? I guess technically there aren’t any but it might be extra costs that you could cover that if she needs to attend appointments and she needs to put her kids into uh child care, after school care or holiday care. Or a babysitter or what if she has medical complications and she can’t for example pick up her children from school or

39:05
Take them to and from activities, things like that. I think that would fall within the of NUKE. Yes. And sometimes if IPs are living local, they might be able to help out themselves with some of those pickups. that’s a way being involved in the pregnancy too. IPs often quite like to be involved. That’s why we do it in Australia. Does the egg donor have any responsibility or concern if both IPs die once a child is born? No is the answer. As an egg donor, just before you have the egg collection done, you essentially sign over. uh

39:33
power you don’t have any responsibility nor can the child claim any like inheritance from me type of thing is the donor so no it then falls under whatever will that they have have written there well even even more than that so anyone who has a significant role in the life of a child could bring an application to have the child live with them or spend time with them and even a will is not binding in that regard so that’s also a myth that if you put in your will that

39:56
you want your children to be cared for by X, that’s not binding either. It really does relate to what’s happening at the time, who comes forward. But if you’re a significant person, then you can seek parenting orders in that situation. Yeah, that’s good. Some questions here sort of tying together that I’ll give some stats that I’m roughly aware of. If there’s about 100 to 150 births each year in Australia for parents to Aussie surrogates, there’s about 300 to 400 babies that are born each year overseas to Aussie parents but overseas surrogates. Now, many of these stats

40:26
in Australia, so they’re doing commercial surrogacy overseas, many states in Australia deem that illegal, yet nobody is ever prosecuted. And so the questions that somebody’s asking there, so essentially if you engage with that and go overseas and you’re in violation, why aren’t they prosecuted and what’s stopping people from doing that?

40:43
My rough answer is that because essentially the law turns a blind eye to it because they were going to rule in the best interest of the child, which is keeping them with their parents. Hopefully that’s something that’s going to be changed over time, legislation wise, but anything you want to add to that Monica? Well, there was that recent case in Queensland. Oh yes, there was because they were their parents, the intended parents were referred for prosecution. Now question, I don’t think anything.

41:08
I haven’t read anything that’s proceeded beyond that decision and that referral being made, you know, this journey is a long one for everyone involved and I think there is a lot of empathy and I think going overseas to have your family, even though it’s not endorsed by our legislation, isn’t a crime.

41:24
that’s comparable with other things that we see, it? So there’s definite caution that has to be exercised. You want to be doing as much research as you can if you’re going overseas and considering overseas surrogacy arrangements. You want to get extensive legal advice here and sometimes in the country in which you’re living, you want to get as much information as possible. Information is power. But the reality is I don’t believe that you’re going to see intended parents going to jail or having severe penalties imposed on them for trying to create their families. I agree with that. You mentioned in

41:54
are some changes that you’d like to see for surrogacy in Australia. For people that might not know, we’re going through a national law reform at the moment, which is exciting. Some of us have been a part of submissions and round table discussions. I personally believe the field will probably move to a compensated model of surrogacy to start with. So there might be more generous expenses and perhaps a small payment made there. Some people have talked about some changes at birth in terms of the transfer of parentage, perhaps speeding up that process. Are there any changes that you would like to see for surrogacy in Australia?

42:24
And then it’s hard isn’t it, when I look at how other countries do it and you look at how sophisticated their systems are, so they have agencies that locate surrogates and they have… East grow accounts. Yeah and you know the surrogacy agreements that they do in America for example are extensive and the rights really sit with the intended parents that don’t sit with the surrogate. So I look at the advancement in other areas across the world and I just think how behind we are.

42:52
I just don’t think the law’s kept up to date with…

42:55
how families are now emerging and how, you know, what Australian families really look like. I think there has to be some version of commercial surrogacy. I think it needs to be regulated. There’s always dangers in that, oh but it needs to be a national process. shouldn’t be state by state. It’s really unnecessarily complicated, I think, on an already complicated journey, you know? Will it happen? My thought, you know, being in education as a teacher, I’m like, we all have our own state-based education systems. Do you think we will have a national set of surrogacy laws or is each state to

43:25
ingrained in how they roll and nobody’s going to budge. There could be a referral of power to the Federal Circuit and the Family Court. It would make sense. It’s happened before. And maybe it’s a much smaller thing to move than education. Maybe CERECCIS is a smaller concept to align altogether perhaps.

43:41
It makes sense that it would sit under the Federal Circuit and Family Court, don’t you think? We’ve got a national court that deals with families, that deals with separating families, that deals with children moving forward. It just makes sense that it would fit under that national framework. I don’t think it’s fair that people who are navigating this journey have to deal with so many complexities. It just makes no sense to me. Particularly if the intended parents of the surrogate live in different states, it just adds that confusion for them. know, and other laws like if you’re in Tasmania, you have to have a Tasmanian surrogate. But if you’re a surrogate in Tasmania, you can carry for anybody anywhere.

44:11
Interesting one question here is from some gentlemen in WA, so the single men or the same-sex male couples in WA that are the last state to come on board but hopefully any day now that that’s happening. I guess sort of the question there is you know eventually if the parentage order is going to be appointed in the long run is there any point in some of these state-based laws? I’m not quite sure. It’s a big difference yeah so I think there’s a real distinction here between what the Federal Circuit and Family Court can do and what the legislation around surrogacy and a

44:41
parentage does. When you go through the family court and you seek an order for parental responsibility, that’s not you being a legal parent, that’s decision-making power for long-term aspects of a child’s care, welfare and development. It’s not parentage as such. Whereas the process of a transfer of parentage is you’re actually being listed on the birth certificate as the legal parents.

45:03
So anyone can go to the Federal Circuit and Family Court. So let’s say I was to pass and my husband was to pass and our children had no one to care for them. My best friend or my sister or my mother-in-law could bring an application to the court and they could basically seek parental responsibility and live with orders that allow them to enroll my daughters in school, to do all the things that a parent could do, but it doesn’t make them legal parents.

45:30
So a transfer of legal parentage under state law under the current legislation makes you the legal parent. And there’s a very big distinction, I think, between those two positions. that make sense? Oh, yes. And I think that that’s the type of thing now that if people had more specific questions about their unique journey, that’s probably a great time for them to find a lawyer like yourself or someone in their state to have.

45:52
ask these specific questions too. Absolutely. Yes. Well, as we start to come towards the end, I’ll ask, I’ve got a couple more questions. One from Stelios has typed in, how can IPs come prepared before seeing a lawyer? What should we come with? I mean, that’s interesting. I guess it depends at what time you’re coming to see me. I would encourage most of the clients that come to see me have spoken to me briefly on the telephone and I’ve had a general discussion with them about where are they at in the pathway of their surrogacy journey and you know, have they located a surrogate?

46:22
look like, they thought about what comes next? So I think I’m having those discussions before they come in, but generally you are coming to see a lawyer at that initial stage to understand the legal process and then to get the written legal advice to get that approval for the surrogacy process. m

46:38
By the time that you’re coming to me for the written advice, let’s say in Victoria, you’re making the application for approval through the patient review panel. I mean, I want you, you’ve completed your counseling by that point. Everything’s sort of finalized in terms of the framework of how this is going ahead. So you’ve mostly completed that by the time you’re seeing me. So I want that information.

46:59
Yes. You know I’m that level of detail because you’re not wanting to come and see me multiple times. That’s a point. Although some of these steps can be done parallel sometimes people are often engaging with their counselor and lawyer.

47:09
same time. They might have already had a session with you at the beginning to get them on track and then they come back later. and if they’re doing a SOC agreement obviously we’re waiting to the counselling processes finalised at that point. Yes. Really you’re just giving me instructions I’ll be really clear on that. You’re telling me your story, you’re telling me what the plan is and then I’m talking you through the legal steps and then the next step after the general advice is to look at the written advice and then

47:36
consider a surrogacy agreement. So I’m wanting the details for that agreement. But again, that can partly be done in conference and then it can be done through written correspondence. So again, it doesn’t need to be an overly costly or complicated process. It can be fairly streamlined. Yeah. Great. I think that brings some peace of mind to people going, okay, we don’t have to come with a book.

47:56
of documentation come with being able to tell the story of where they’re up to with their team. Absolutely and normally what I’ll do is I’d be asking you a number of questions and if there’s anything missing or anything I need you just email me back after the conference it’s not again it’s not a major concern. Yeah that’s great. Well to sum it up is there anything else that you would like to mention that we haven’t covered already or any parting bits of wisdom or advice that springs to mind?

48:19
I mean, the main thing I think I’d say is don’t be afraid to go and see a lawyer and get legal advice. Information is power. It’s you know, you need to understand your options. You need to understand what’s involved and that ultimately is going to set you up for success in your surrogacy journey. So I know coming to see a lawyer is not usually top of anyone’s list, but the people that work in this area of law usually have a passion for this area of law. And certainly I can say that people that work in the area of family law more broadly, we’re really here because we want to help.

48:49
help you on your journey and um everyone’s journey is different but you know you I’m sure you’ll be met with empathy and care and hopefully professionalism and efficiency. So try not to give up I know it’s a long journey and I’ve been partway myself on that journey and yeah just keep going keep your hope alive and and get as much information as you can.

49:10
Wonderful, I think that’s my advice and it might put people at ease having sort of met a lawyer now that if they engage with you it’s like okay this isn’t so scary and just helps them to go okay I can do that next step and as you say people in this field are passionate and they want to help. really are. Yeah it’s a positive area of law ultimately. Absolutely, yeah.

49:30
Thank uh

50:00
surrogacy works in Australia. It can be very lonely and overwhelming, but there is plenty of support in the village if you go looking for it. And as the saying goes, takes a village to raise a child, but in the case of surrogacy, it takes a village to make a child. So welcome to the village, everyone. That’s my catchphrase, Monica. I love it. Fantastic. Yeah, we need a village to do this surrogacy journey and then, and this sense of feeling that we’re all part of the village. You’re part of the village too through you’re a professional service provider in this world. So you’re one of our village members.

50:30
You didn’t know it but you are. No I love it, thank you. Thank you for joining me. If you’d like to see other recordings with photos head over to our YouTube channel to watch other webinars. You can head to surrogacyaustralia.org for more information about surrogacy. Also check out our Zoom monthly catch-up sessions which are a great way to connect with others in the surrogacy community. Attending a Zoom is scary the first time but there’s only ever one first time. We have all been beginners at some stage.

50:58
As we say, it takes a village to raise a child and in the case of surrogacy, it takes a village to make a child. So welcome to the village.