Episode 87 – Sarah Bevan – Lawyer

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Thanks for watching!

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This episode, recorded in September 2022, was different to the standard webinars as it featured lawyer Sarah Bevan. Sarah has practiced solely in family law since the commencement of her career over 20 years ago and obtained her specialist accreditation in family law from the Law Society of New South Wales in 2005. Sarah Bevan family lawyers are experts in surrogacy, having assisted many Australian and international intended parents and surrogates.

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Sarah led the team responsible for the landmark New South Wales decision for the first same-sex couple to be registered as parents on their child’s birth certificate after that child was born through a surrogacy arrangement. If you’d like to arrange your own session with Sarah, you can find her on our website Sarah Bevan Family Lawyers. In this episode, we cover questions such as what are reasonable expenses that we can cover for our surrogate? Are the agreements enforceable for surrogacy and egg or sperm donation?

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Do we as IPs ever get our names on the birth certificate? Is anyone ever denied a parentage order? What should we look for in a surrogacy lawyer, both for IPs and the surrogate? And what if the relationship breaks down among the team? Sarah mentioned SAS, which is 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 potentially be connected with the surrogate, then head to Surrogacy Australia’s website to register for SAS.

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SAS is also open to teams who know each other before surrogacy, and they would join for the mentorship, agency support for the IPs and surrogate, and to have me as your guide. You might think of me as your Siri for surrogacy, or as someone else called me recently, your chat GPT. I hope you enjoy this episode, and please reach out to me or Sarah Bevan if you have further questions.

01:59
So here we go, Sarah. This was me trying to anticipate the questions that people might have at the beginning. So I imagine people saying, oh, we’re looking for a surrogate or we recently had an offer from someone. And so take us through things like, when should we see a lawyer and what should we look for in our surrogacy lawyer, both for the surrogate and IPs? And are you, Sarah, able to be a lawyer for us if we are our surrogate living in interstate? Okay, I guess the first question is, can both we, and I use plural for IPs, of course it can be single in most states,

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surrogate have the same lawyer? The answer to that is no. And no, it can’t be the different lawyers from within the same law firm because of our rules of engagement and our professional obligations, the same law firm almost always is considered to be in effect the same person. So you will need two sets of lawyers. Obviously, this is going to be focused towards the IPs, but because we’ll get to costs in a minute, the IPs are going to be meeting the surrogate’s costs. It’s probably very relevant for the IPs as well to be factoring that in and take

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surrogate needs a lawyer as well. So probably the biggest or the first question I get asked when people are sort of early in their surrogacy journey, the thing I get asked most is when should we see a lawyer? And you’re probably hearing this a lot and most people just think of it as a typical lawyer response. But the answer is it depends. And it depends on a range of range of issues. I generally say that if you’re using a known surrogate, you should be seeing a lawyer sooner rather than later. I’m going to discuss some of why that

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to a later section about concerns and possible issues that may arise. If you are, for example, going through SAS and finding yourself a stranger surrogate, you’re normally both coming to it with intent and you are normally doing it with a lot of research. That’s not to say the other people going with a known surrogate are not doing the research, but most of the time, those IPs, we don’t normally see until they’ve sort of formed the surrogate team. So when you’ve got the idea of, well, this is gonna be my surrogate,

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We’re not definite, but we’re at the point of this is going to be my surrogate. I think in the chart beforehand, it talked about counseling, then legal advice. You can do that because a lot of the counseling that you are required to do does bring up some of the what ifs and the concerns that a lawyer is going to think about. As surrogate lawyers, we have a really great job in helping people build families. The other part of my job mostly relates to people’s families breaking down. So you can probably see from that why my team and I like doing surrogacy. It’s been joyful. It’s much nicer than the other end sometimes.

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We as lawyers tend to be very cynical. It’s our job, we’re paid to be. And if you find us in a bar, we’ll always have the darkest him around, normally very inappropriate as well. But our job is to think about all the what ifs and the bad stuff that people don’t want to. So when you come and see a lawyer when you’re at the beginning of your surrogacy journey, we’ll bring up some of the what ifs that you might not have otherwise thought about. And you might need to go back to counselling or take to your counselling if you haven’t yet had your counselling. Sometimes we say it’s never too early to see a lawyer.

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most IPs is that they are mostly the people who have put a lot of time and effort. They’re great, great from a legal perspective, they’re great clients to work with because they’ve put their own effort in, they don’t come with a complete lack of knowledge, they’ve got an idea, but they want to make things work for themselves. Some people, however, just simply don’t have the time or energy to be going through all of the detail that they need to, that other people might do on their own, want to come and say right at the beginning, before they’ve even got a surrogate, they might want to come and say, tell me the steps,

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for, you know, in your experience, where the problems lie. And we see people like that fairly regularly. And as I said, we also see people who’ve got their surrogacy team basically ready. And as you sort of saying that they come prepared and they’re great project managers. Yes.

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you’ve done a lot of research. Exactly. And would it be best, often people might do the counselling and legals in parallel or they certainly start at a good way to go? It is. Usually those people who are sort of further along in their process are getting both things done at the same time. And we will have people call and speak to, you know, our…

06:00
paralegals and say which one first lawyer or counselor and again we’ll normally answer with a sort of well it depends you know have you got an appointment booked are you concerned about anything in particular if there’s no concerns in particular then maybe you want to go to your counselor first but don’t close off the possibility that you’re going to need to go back it really is a personal choice sure i think maybe i’ll dig deeper on one point if they perhaps haven’t officially had the offer from their surrogate and then you know they’re ready to do that official paperwork and maybe those way back at the beginning i think i mean in terms of they know that surrogacy

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even bound a surrogate. Is it worth them engaging with a lawyer then? I mean, I’m sensing there’s never any harm because you might potentially be creating a connection with a lawyer that you then will engage with in the future. Is there some benefit to that? There is some benefit. You know, to be totally frank, there’s not as much benefit as I could offer someone who’s further along.

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in the process. And normally if people are calling up to do that we’ll say, look don’t bother booking in, don’t bother behind the full hour, just come for a quick half hour chat, cheaper it’s quicker, and we can go over some of the concerns that you might have. It’s potentially worthwhile, especially if you’ve got some tricky issues. So if people have some history themselves that might be concerning towards the surrogacy process, then absolutely come and see us earlier the better. Cool, yes, but I appreciate that frankness in terms of if there’s nothing major you probably don’t need to

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written agreements then? Exactly. That probably leads us nicely into the next one then, which is about the written agreements. So then assuming then that the teams, they’ve got the team and they’re getting ready to do those counseling and legals for surrogacy. So what’s the next step in terms of finding those lawyers? Any advice on that? What is that agreement going to cover? What are the reasonable expenses that we can cover for our surrogate and are those agreements enforceable? It’s a bit of a classic question sometimes. Yeah okay, let’s start with finding the lawyers. The reality is that surrogacy is a very niche area and

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There’s a relatively small number of us that practice in it substantially because it is such a niche area, to be totally frank, it doesn’t earn us great lots of money like some of the other areas of law do. So that might be why less people do it. Also to be frank.

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Lawyers are often very good at talking the talk. It’s sort of our job. You know, if you went to your local corner down the road, they might tell you they know surrogacy and in fact they don’t. And then they’ll be ringing around or trying to find someone who can help them out. So feel free to ask questions. I always say if you’re making an online inquiry to a lawyer, feel free to ask basic questions about their experience in the area. We’re not allowed to lie outright. So you would hopefully get an outright answer from that.

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handle a year. We’ve got those types of questions. I’m just gonna do a quick little plug there. For people who are with SAS in our portal, which is our internet of resources, we have a list of counselors and lawyers in each state who practice in surrogacy and have experience and that I’ve contacted and to make sure that they are current and up to date. So that’s our job to keep that up to date. So in terms of that niche market, we’ve got some of those lists there. And so obviously Sarah’s firm is one of the ones that are very experienced in New South Wales. So carry on there.

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need a lawyer as well. It is totally up to your surrogate to choose her own lawyer but I always recommend getting a couple of names from the lawyer that the IPs are going to use because you know going back to the nature of lawyers most of us have big strong personalities and every now and then we clash with people and there might be a very experienced surrogacy out lawyer out there but one who we just don’t gel with you know that’s entirely possible with a lawyer that you’re working with. In any profession it happens too doesn’t it? Any profession it does yeah. You have pairs I’m assuming of people that you’ve worked with in the past and you know you’ll be

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good team so that when you’re exchanging the agreement and going back and forth to each other that’s amicable for you and also probably fairly smooth. Exactly. And the idea is for this to be a collaborative process, the working together. You don’t have two sides of an argument. You have two sides who want to have the same goal in mind and want to work together, but have to because the way lawyers rules are, have to have separate lawyers. Absolutely get a couple of names. Absolutely let your surrogate know what I say about suggesting that they work with a lawyer who is a lawyer

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they’re familiar and comfortable with, but it’s still her decision in the end. I suppose what I didn’t just putting on here, but a couple of tips about working with a lawyer. Just remember that our time is your money. So be prepared, have your list of questions ready. And I find that so common, so commonly with surrogacy clients that they are normally very well prepared and they come with a list and no experienced surrogacy lawyer is going to find that in the slightest problem. And in fact, we’re going to welcome it. And also don’t be shy about costs. Your lawyer really should be completely upfront about what it’s going to cost.

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charge just a fixed fee, so not on our, what we usually call timed hourly build rate. And for altruistic surrogacy within Australia, that’s what our firm does in example. And I know Fair Number do. Okay. So what should an agreement cover? Well, we come back to my favourite lawyer answer of it depends. But in saying that, it means it’s entirely personal to your situation. So there are a whole heap of things that have to be covered in the, in the surrogacy agreement. It’s actually technically called an surrogacy arrangement under most of the acts, which I find really quite bizarre wording.

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I’ll stick with agreement. Yes, I’ve found that too, as I’ve come across the different legislations. Yeah, and it’s very awkward, I think. A range of, yeah. Yes, yeah. A surrogacy agreement is designed to allow for the transfer of parentage once the baby is born. We’ll come to that, what that means a bit more later on. What it’s also, one of its aims should be is to encourage collaboration and cooperation between the IPs and the surrogate, because like I said, a number of the what-ifs are going to become

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coming up. So it can cover a whole, like I said, there’s no real limit. There’s in fact, no set limits as to what you can put into a surrogacy agreement. In many aspects of my work, I say less is more. In a surrogacy agreement, I think the opposite often applies. So I get clients to think about, you know, what, where are the limits on the IPs role during pregnancy? It’s perfectly understandable for, you know, IPs to be wanting to see that belly grow and be rubbing the belly and that sort of thing. But maybe she doesn’t want that. Maybe surrogate mother doesn’t want to,

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would feel intrusive to her. What sort of appointments are they going to go to? All of that can be put into the surrogacy agreement and ideally should be. There’s also the bad what ifs, you know, what if you’ve got IPs for a couple, what if they separate during the pregnancy, what if one dies, what about you know the really bad situation like significant health issues for the for the fetus, what’s the position on termination, all of those sorts of things. No set limits to what an agreement can cover. And a lot of these would be covered equally in counselling too, aren’t they?

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So you’re already at that level of thinking about these things quite deeply. Yes, so in our processes, you’ll have your initial appointment, there’ll be a whole lot of what ifs, you go off for further counselling or counselling, discuss all those, start sort of forming a view as to how much you want in that agreement. The IPs will be coming back and saying, okay, this is where we think we’re at, and we start nesting it from there. Yeah, and it’d probably be right to say that most teams never think that their team will fall apart. Oh, exactly. I was just thinking, like, in terms of if you, it’s one thing to talk in counselling about,

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social media announcements or how hands-on during the pregnancy do the IPs want to be with the surrogate. But I’m thinking, you know, what if that changes during the pregnancy? I doubt that any team, once you’ve started to go through surrogacy and realised so much of it’s about trust, I doubt that, you know, the IPs are going to come to the surrogate during pregnancy and said, you said we were allowed to rub your belly once a week. Come on, that’s what it says here. I’m sure it’s going to come down to the surrogate feels differently or the IPs feel differently, have a conversation. So in terms of, is that what you’re encouraging too?

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Yes, we write this in the agreement, but you need to trust each other. Yes, exactly. It’s a guideline. It’s to promote collaboration, to promote cooperation. And I suppose that leads nicely to that last point on the slide, which is our agreement’s enforceable. And this is the bit that I feel really guilty when I have to say this to people. No, they’re not. With one exception, which is to do with expenses. They’re not enforceable. The example of rubbing the belly once a week, even if they came and waved that around, I mean, that would be honestly to do. But if they did, is it enforceable? No, it’s not.

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really struggle with sometimes, entirely understandably. But it’s the framework we work, the legal framework that we work within. And so much of this process is about trust. People say, why do I have to do it at all? And the answer is really very simple, because if you don’t, you don’t get a transfer of parentage order. Simple as that. Yes. I guess so in some ways they, so they could come in and go, let’s do this bit quickly, because just have to do this because of the parentage order. But it is an extra opportunity, isn’t it, to reflect on what you want as a team. But also, yeah,

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that the reason it’s there is because what would the opposite be if it was impossible and then we’re suddenly forcing a woman to have her belly rubbed once a week if she changes her mind or how the birth wants to work or the termination of pregnancies and stuff. The opposite of that is not a path that we’re going down in Australia. And so it is the framework that you say that we’ve got and I think it is okay to be nervous at the beginning in terms of what if that means she changes her mind on lots of things and but then as people come into surrogacy

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We’ve had our family and so there’s a lot of trust that from us to you as well that they’re going to do what they say they’re going to do and cover our costs and be there for us in many ways that they’ve said that. So yes, it’s an interesting part of law, isn’t it, to have this not enforceable thing, but it’s required for that parentage order. Exactly, exactly. And it’s in a way the same as a heterosexual couple and she gets pregnant naturally and she has this birth plan that says she wants him to rub her back during labor and then she says, you touch me and I’ll chop your hand off.

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It’s a guideline and it’s more about having those conversations. So yes. Expenses, that’s the big one. What can we cover? Well, the legislation sets out what can be covered. None of the legislation, so when I refer to legislation, it’s actually state and territory based. So we have separate legislation in each station and territory of Australia. And they’re all generally the same with small.

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very important differences and those differences can trip you up if you don’t get it right. For example, some states require surrogate to have had her own child, live child before, other states don’t. So when I refer to legislation, it’s not uniform, but they all do in general terms say this is what can be covered and it includes things, obvious things. So the surrogate’s legal expenses, the surrogate’s direct medical expenses, surrogate’s travel to appointments, lost wages for travel to appointments, including her partner if she

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one. So and things like if they had to put the kids in child care or after school care when they’re having those services related appointments those costs are reasonable too. Exactly. Obviously the fertility appointment, fertility costs, all of those sorts of things they’re all obvious. You know the most some of the questions we get is you know can we pay for nice things that you know if she was your partner.

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that you’d probably be covering because she’s sore and tired and that sort of thing. And that’s the tricky one. The answer, unfortunately, is generally no. You know, the extras in terms of hot stone massages, remedial massages are the different thing. But, you know, the nice hot stone massages or a facial at the day spa, which… This is tricky. And this is where, like, I have my hat on, you know, from within the community, but does happen. And in terms of…

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And so it’s about, I know I’ve got a lawyer right here in front of me, those of you who can’t really know what I say, but in terms of finding ways as a team to support each other and sometimes that can be done in terms of time that we often talk about in terms of.

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could you come and take her kids out to the park and while she has a rest, while she’s pregnant with your child. And so that’s helping out a friend and those sorts of things. So yes, we’re certainly not here to buy, like for example, if she’s in her day-to-day life, not had a massage, it’s not part of her life to have a massage weekly, but she suddenly requires that during pregnancy, that’s not okay because that’s a change in lifestyle. Likewise, if she already was paying for a cleaner in her normal lifestyle, the IPs don’t have to take that cost on, but perhaps if in the late stages of pregnancy, particularly if she’s a single mom,

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and she physically can’t do something anymore, it might be reasonable, would it be reasonable to cover an expense that if her family can’t function and she needs that support, it’s sort of being reasonable things I’d imagine. Yeah, and also, I know you said you’ve been careful because you’re a lawyer in front of it. We know that these things happen. You just don’t necessarily want to put it in your agreement. But the question is, who’s going to be saying anything? And the reality is, certainly if things go wrong, that anyone’s going to be saying something. And we do get our IPs who call us

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pregnancy and say, can we do this? The first question is, has she asked you for this? Or do you want to do it yourself? You know, can we pay for it yourself? No, it’s not covered in your agreement. Would it be breaching what this is? And it depends on it.

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again comes down to the circumstances. Again, like so much of this about being reasonable and rational. Yes, yes. All fair points there. And I suppose some IPs might fear that if they pay for certain things, will it compromise their parentage order down the track? So they’re reasonable fears, I guess. Yeah. Okay. Any more to expand on? I mean, again, we could have an hour webinar on one of these topics, right? Yeah. Exactly. Just on expenses. Yes. Okay. I’m sure if people have

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type them in because that can often be a bit of a gray area. Maybe I’ll ask one more while we’re here. Loss wages. I mean every state can be slightly different on this one and is that reasonable? Generally in terms of appointments, yes. If she’s then pregnant with your child and she, okay well let’s say the doctor’s ordered bed rest for a couple of weeks, is that then should she take leave without pay and they cover her wage as opposed to her using her in sick leave?

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Generally, yes, that’s what happens. Yes. And again, it comes down to reason on us. Yes, conversation. That’s right. So if she wasn’t pregnant with your child, this would not be happening to her. But again, we can have dodgy surrogates and dodgy IPs, I have to say, you know, over time. And so it’s that this is why we need so much trust happening before we get to this point of being pregnant, don’t we? So that people are being trusting and reasonable together. I might just ask this one question at this point in time. So Christina said, what about more specifically a foot massage later in pregnancy?

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finding things harder there, would that be reasonable if there’s sort of a more medical or physical related reason? Absolutely. I know from my pregnancies, if I didn’t get my foot rubbed on a daily basis, I would have had something to say. Yeah, it’s uncomfortable. And so I think Christina there, I think sort of what Sarah and I are saying is if the surrogate is suddenly wanting extra pampering regularly, that’s not part of a normal lifestyle, then that’s sort of starting to go, is that a bit too much? But just like you might buy a friend.

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who’s pregnant, you might buy them a gift, you know, as a pregnancy thing. Gifts are okay. It’s when they’re starting to smell like, you know, monetary payments for things, that’s where it gets a bit dodgy, but you would buy your friend a birthday present, you know, or those sorts of things. So I think there’s a bit of flexibility there. So I hope that answers that one. All right, we might move on.

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to the next slide. All right, so then we’re up to, we’ve had the baby, wonderful. And then how does the process work after that, including things like, so as IPs, do we, you know, who’s on the first birth certificate and do we get our names on it? Do we have to keep all of those receipts for all of those expenses? And then is there any chance that we won’t get that parentage order? Okay, so the second other tricky bit of our legal framework in Australia is that at birth, the surrogate and her partner, if she has one, whether that’s female or male,

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the birth certificate and that is and that’s a birth so that’s a really tricky thing for IPs to get their head around and surrogates too for very good reason and of course that brings up the question of oh is she going to keep baby and those concerns I remember when I did my very first one when that new surrogacy act came in in

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2010 or come to effect in 2011. Just the nervousness of the dads in that case of just, well, you know, what if she does? It’s like, well, they don’t actually have a lot of case law. It should be okay. But because there’s this initial name on the birth certificate, it can…

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understandably cause a lot of concern. In reality, in the vast majority of cases, a technicality that is there has to be there because of our legal framework, but it changes. So how it changes is that between it’s, and this is where the states and territories differ, it’s between 28 days, 30 days or six weeks, depending on which state or territory you’re in. After the baby is born, can make an application to the relevant court in the state or territory, has to be within six months of birth. In most, to do a transfer of parenting.

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And for that, there has to be the post-birth counselling. There are various forms to fill in. Now here again, when this is another point on when you’re testing out your, your Surrogate’s Lawyer, ask them what the process of how they do this. So as an example, what we do is that a month before the due date, we will start preparing your documents because we know that as soon as that baby is there, you’ve got the rush of hormones, one being the one giving birth, but you still got the rush of crazy hormones of having a new baby. But if your baby’s a lot younger too, you’re not going to sleep.

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the first three years. Good luck with that. Yes, I’m going to navigate legal work now. So, you know, you will know that there are these lovely lawyers in the back of your mind that you’ve got to get to, but we won’t really be your priority. So that’s where we take our job very seriously and say, that’s our responsibility to be chasing you rather than the other way around, which is why a month before we start getting things ready, we can’t get it ready because we don’t know the date of birth of your child, we don’t know the name of your child, you know, all those sorts of things. So we haven’t had your counseling, but we start getting things ready so that we can basically hound you.

23:18
And factor that into your business and know that that one’s coming. Exactly. It’s a relatively procedural thing to do. So there are various documents, I’m not going to go through, I don’t have time to go through all of them, but various documents that you have to fill out, send to the court. In most states, you don’t go to court at all. So a procedural thing where a judge stamps it and says, isn’t that nice? And then you are officially now the baby’s parents. We did it in South Australia, so we must be one of the few. Yeah, you are. And Quay’s been in court. Five minutes in court.

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do it because they like it. It’s positive, isn’t it? Yep. Yes. And for us it’s all that nice, that’s the legal end of the project. And I think even if the teams don’t have to go to court, I would recommend to people listening that you mark it in some way and you go out.

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for a lunch or a dinner as a team and go, that part’s done. I think it’s also quite important for the surrogate to separate that in some ways that she did it. And I just saw a question pop up from Grant saying, who does it, the IPs or the surrogate? The IP’s lawyer does all the heavy lifting. The surrogate’s lawyer has to sign up with her. The IP’s lawyers does do all of the heavy lifting in terms of all the documents they’re doing. And that’s relevant because if, for example, you’ve got your surrogate in a different state, but the IPs, it’s all based on the IPs, state of red, state of territory of residence,

24:31
relevant consideration as well. Perhaps I should just mention that if there are people at the very beginning, so just confirming that, it goes by the laws of the state where the IPs live. So even if the surrogate lived in a different state, like with me in South Australia, and she births in South Australia, and that’s where the first birth certificate is, that’s okay, it’s still relevant to where you’re going to obtain your parentage in the state where you as the IPs live. So that’s fine in case anybody’s wondering about interstate birth. Maybe that is a good question. Megan’s just asked though, do you have to use a lawyer in the state?

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you live in. So for example, if the surrogate and IPs are in different states, is it ideal to use somebody in their states or does it not matter these days with Zoom or does it depend if the lawyers have experience in the legislation of those states? That’s what matters. The ability of your lawyer to be able to do the work in the state that’s relevant. So the IP state, the majority of surrogacy lawyers that I deal with work in most states. There’s a little bit of issue with

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anyways. The answer is it’s better to get a lawyer who knows what they’re doing as opposed to one who’s in your state or down the road. And I’ll do a plug there again. In that SAS portal, I’ve contacted all those lawyers and found out those that do Interstate or not. And so it’s got Interstate written next to their name. So that would save people some time. If you’re not with SAS, you are welcome to purchase the portal on its own. And there’s information about that on our website. So, OK, so I think we’re up to, yes, so how this order of how we’re going through the parentage order and things that we have to

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to keep all their seats? The answer is no, you generally don’t have to. As a lawyer and you know, this whole cynicism thing that I was talking about, I say yes, because just in case it all goes bad, do it. You’ve got to think about the what ifs. Most of the time you’ll just have a file on your computer that’ll shove it there and as soon as that order is made, you can delete the folder and or print it out and burn it, you know, whatever. But yeah, do so. You’re almost certainly not going to need it, but do so. I don’t think I could have it all so sorry. When do you get your names on the

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for the new birth certificate. Yes, so there we go. Once the court process is done, then you can apply to birth, death and marriages there. I’m going to add two things just on the expenses. I know that some teams, the IPs might open a new bank account within the bank that they’re used to working with and have a, sorry, it has a card that’s connected to that account. And then you would have one account with all of your surrogacy related costs just in there. And so then it’s not confused in with your other day-to-day bills. That’s one option so that it’s in place, the just in case times it ever happened.

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certificate kept on record at birth, death and marriages. So the one with the surrogate’s name on it, that’s a yes. Pretty sure. It’ll always be there. Yes. And I will add, like I’ve got the one down here for Baker, the surrogate, bye bye birth. It’s often quite a souvenir for the surrogates. We often like to keep a copy because that’s the record that we did that. I mean, I know I’m written as birth mother and his siblings are listed as my two children. That’s the record there. And I believe, I mean, it might depend on each state, but there’s certainly on the second birth certificate where the IPs come along.

27:25
this either a star or there’s a mention that more information about this is kept on record at births, deaths and marriages. So I suppose just in case the IPs and the surrogate lost touch and never wanted to talk to each other, does the child even know they were born from surrogacy then? I think most of those birth certificates now have some record of that so the kid could go, oh, what does this mean? And that they can investigate that. Is that about right, Sarah? Each state, do you think? Yeah. So that’s a nice thing that I think that’s important to have on there and often to if they’re donor conceived too, there’s mention of that there as well.

27:55
scenarios then, is there any chance people won’t get a parentage order? So you follow all the steps and you’ll get your parentage order. Of course, things can on very rare occasion go wrong. We’ll get to that I think on a future slide. If you follow the steps, so it’s a legislative framework and it’s about stepping through each of those and as long as you comply with those steps, which is what you pay a lawyer for basically to help you along, then you’ll get your parentage order. I like the way you’ve answered that. It’s a bit of a lawyer answer. It is a bit, isn’t it? It is a bit, but I think you’re right.

28:25
is all about relationships and they can be tricky.

28:28
And sometimes there is tension, you’re dealing with pregnant hormonal tired women in this situation, many adults involved. If things are starting to seem wobbly, have some counselling is what I would advise. Don’t wait until things blow up. Have planned to have ongoing counselling during the pregnancy, both for the surrogate and sometimes for the team. It just heads off some things that perhaps aren’t big issues, but it can catch them early. And I think that would be my best to try and be preventative of these sort of things as opposed to reactionary when they go wrong. Exactly. That’s my advice.

28:58
little while now. All right, we covered that one. Yeah. So then, as we said, some of the general concerns, this was me trying to anticipate some of the questions that the IPs listening tonight might have things like is the surrogate going to ask us for money? And can we buy her a gift? Any other common things?

29:14
problems that we should be wary of and is she going to want to keep the baby? Okay, so will she ask for money? I hope not. I agree. I hope not. She’s got to surrogate if she does. Yeah, exactly. So in Australia, commercial surrogacy is illegal in some states of the Eastern Seaboard, well, top end of it, New South Wales, ACT and Queensland, it’s illegal whether you go internationally or not. If there are red flags at the beginning, then you should be thinking very carefully about is this the right potential surrogate for you. Because commercial surrogacy is illegal.

29:44
well hinder the ability for you to get your parentage order if you do anything like paying her a fee. Can you buy her a gift? Again, it comes down to a question of degree. So, you know, we talked before about, you know, like you would buy anyone a gift. Does it look like a gift? You know, I’ve got a friend, great friend to have, who buys ridiculous gifts all the time. You can get awkward at times, but, you know, she buys, you know, really quite extravagant gifts on a regular basis, often for no reason. So if she was

30:14
gifts every now and then you go oh well that’s

30:16
part of her makeup, that’s how she is generally. But on average, if it smells like not a gift, you’ve got to apply that test of reasonableness, then you’ve got to be concerned. If you’re buying her flowers, whatever. If you’re buying her commercial level flowers and it turns out she’s got some sort of, I don’t know, wedding planning business and she’s using it for her business, then maybe that’s not actually a gift. Agreed, it’s under business, yes. Well, that’s your cynical mind there, I hadn’t thought of it like that. Yeah, it’s a cynical mind. What are the pitfalls?

30:46
I refer to this in general terms at the beginning. So we find the most.

30:50
problem or potential problems arise where you’ve got known surrogates. So most of our stranger surrogates who meet online and go through, I think, have had many times the surrogate dating process, they do it with such intention. These surrogates are amazing women who are willing to go through pregnancy and birth for someone else to have a baby, and they normally come to it with great forethought and intention. With known surrogates, often they’re a step

31:20
or your friend who says, oh, of course I’ll do it. I want to do anything for you. But then there’s not the forethought of all of these sorts of things. I haven’t been involved in the forums and, you know, sats and all that sort of thing to be looking at all those issues. And then you can get issues about, you know, surrogates involvement in the baby’s life. And that’s probably it’s not common.

31:42
but it’s as surrogacy becomes more common in Australia, it’s something we’re seeing a little more of as it goes along, especially, I think the next slide is about egg and sperm donor and it all relates back to that. So that’s probably the most common pitfall is if you are dealing with someone you know, be as thorough and even more careful than if you’re dealing with a stranger. Agreed, I think I would say anecdotally without having collected data on it, there are times train wrecks of teams that fall apart and lose contact, but I think sometimes the more

32:12
ones or more often is from the teams that knew each other beforehand and because they sort of rush into it because they’re like we know each other you know we’re gonna be friends or family but you’ve never done this together yeah and it’s different isn’t it I think sort of what you’re saying there some of the common pitfalls is take your time at the beginning it’s the advice there

32:29
Exactly. You know, the desire to have a baby is so natural and so normal that IPs are just so ecstatic and so blinded by, you know, this idea of being able to finding a surrogate, you know, because I hear the horror stories and having to find a surrogate and they’re blinded by that and it’s totally understandable. And then they come talk to a lawyer like me who goes, what about this? What about that?

32:50
about this? What about that? And you see that face is dropping and I’m sorry, but I need to do it now. My job. So it is, there’s a lot to think about. And then I suppose one of the classic fears is, you know, I know as a surrogate, she’s not going to change her mind, but what if she, are there some systems in place for that if that happened? Yeah. So what if it all falls apart? What if, you know, the basically just about the worst thing happens? So there’s actually a few cases along those lines. What generally happens is that the baby ends up with back with the IPs. So there’s

33:20
framework about how that happens. It doesn’t happen by transfer of parentage, so you don’t get that nice and neat birth certificate. So if you haven’t complied with all the legislation, so you haven’t had all the post birth stuff, you haven’t submitted the documents, you can’t get your transfer of parentage. Instead, you’re going through the family court and you’re doing things like parental responsibility and the like. And there have been a couple of recent cases, one that springs to mind is where the surrogate said that she lost the baby. She didn’t. And a few months later, lo and behold, there’s a baby and

33:50
the IPs. Dad was biological dad because he had

33:56
provided his sperm, other parent wasn’t biological. And so there’s a complex legal framework about how that works. But basically what happens is baby ended up with the IP. And because they were in the best interest of the child. Exactly, exactly. And these agreements come about because a couple or a single person wants to be a parent and has put all these things in place. And the vast majority of cases, I would say, it’s going to be the IPs and not the surrogate. I mean, it’s almost never going to happen. And in the cases where on the rare, rare cases,

34:26
happen, you have a backup, backup revision that is very much likely going to go in the IPs favour. Yes, agreed. And that was my understanding of that too, ruling in the best interest of the child there and because they’re the commissioning parents, that’s why you’ve got this agreement in place to show that back at the beginning when everything was well and happy, everybody was of same mind and they all wanted this and we’ve commissioned this pregnancy. And so this was the intention and this is the biological connection.

34:51
And so, yes, I hope that puts IPs at ease if they’re listening to this, whatever point you are in your journey. Okay, so I think we’ve done that one. And so then often in surrogacy, particularly when you’ve got two guys, you’re often needing an egg donor. Otherwise, that’s called traditional surrogacy where it is the surrogates own eggs, just for those people who are brand new. My data gathering, maybe 10%. So one in 10 surrogates do that. So not very common. It’s more common that the surrogate is just the…

35:15
the carrier, if you like. And so they’re, or sometimes in the hetero couples, they may also need an egg donor because the mum-to-be’s eggs are not working. So I know, because I’ve been an egg donor myself, that I had to engage with the IVF clinic for those processes in terms of there was some, there was some counseling and their sorts of agreements involved. How does it work in surrogacy though, Sarah? Enlighten us on that. So first of all, can they use donations in surrogacy? Do they need a separate agreement with you? And are those agreements enforceable as well? And cases of no one

35:45
unknown donors. So do you have to have one other than in relation to the fertility clinic? You don’t necessarily need an agreement. If you have one, again, it’s not actually possible. Where it really comes into play is we had a very, very important case because I went to the High Court Australia quite recently where there was a known sperm donor, a gay man who donated his sperm to a lesbian couple, an agreement that said he would be somewhat involved in their lives and they changed

36:15
him, it went to the high court, there were a lot of decisions around a lot of really technical legal argument around who’s a parent and what that means. But where it relates to agreements is that the evidence, the agreement was evidence of intention. And so that played a really big part. So if you’re dealing with a known donor, then you’ve got potential issues, you know, maybe you intend for that known donor to be involved in the baby’s life. Maybe that known donor specifically does not want to be involved in the baby’s life, but then, you know, come back to the what ifs,

36:45
Hey, I’m talking here about sperm donor. He jumps up and says, Ashley, you know, I never have children myself, so here, I want to play dad. All of these things can be very important. So there’s something if you’re using an egg and sperm donor, you should be talking to the lawyer about the specific examples. Can you use an unknown donor? Absolutely, if any there are more of them. I don’t know if I’d agree with that. Well, no, in terms of, I think I would encourage for the children’s sake, but I would encourage more known donors. Yes, but in terms of the-

37:15
donor, egg donor availability. Yes. That’s right. So, and that’s why things like the World Egg Bank and I think some of the clinics are starting up their own programs with overseas paid donors. So does that therefore not matter? Because sometimes people engage with an unknown donor, that means they’re paid for eggs from another place. Does that affect an altruistic surrogacy agreement then? Potentially, yes. And there are actually relatively new provisions around fertility clinics and importing and exporting gametes. And so that’s also a real live issue at the moment.

37:45
as to whether it’s even possible. And I think some of those places like World Egg Bank and others, sometimes they collect their donors in a known way. So I think they’ve got, they’re not classed as totally unknown because they know them. And so that could be some questions that people need to specifically out their clinics and their lawyers and find out the details, because it would be terrible to create embryos and then you suddenly can’t use them in a surrogacy group. Exactly. So there’s so much project management to be done here, isn’t there? And so many questions to ask. There is, exactly.

38:10
Okay, so then the anonymous question that came through was, would I require a surrogate lawyer and have an agreement for an overseas egg donor? We just started to touch on that too then. We did. So an overseas egg bank donor, then generally no. If you’re talking about a friend, family member or someone who’s coming from overseas, yes, you should. And yes, you should be looking at the ability to import those as well. Although the import rules are far, well, basically the new provisions around gametes is about preventing commercial surrogacy

38:40
legal in Australia, that’s the focus of the provisions there. Basically, the answer is probably yes. So I think it sounds like engaging with your clinic and asking these questions and perhaps specifically asking your lawyer. So even if you may not have a surrogate yet, but you’ve got somewhat an offer to be an egg donor. And so that’s a bit hard and ominous because we’re not sure if you mean known or unknown, but hopefully they’ve given you some guidance in terms of where to start there.

39:05
Elephant in the room question, because your legal fee costs could be different to interstate. What should people expect as the approximate costs, including legal fees? Now that could be slightly different for IPs or surrogates, but I suppose that question comes from, how do I know I’m not being ripped off? Like at what point might a lawyer start to go, this number, and you go.

39:23
Is it arranged? Well, in terms of interviewing your lawyers, is find out what the costs are. So we have fixed fees and we do it in the two stages. In terms of your lawyer will know the legal stuff. So I was just thinking to myself, what are our fees? And I actually don’t know, off my head, I would normally just say, oh, hey, Tiffany, who’s my assistant, what are the fees? And she’ll answer for me. I could have looked it up, but I got. So the lawyer or their assistant will, should be.

39:45
completely upfront in telling you what those fees are. Bring an ask or whatever, because it’s not something that we hide. Find out from a couple of others. It’s not always the case that cheapest is the best, absolutely, like everything. Sometimes you get what you pay for, sometimes it’s an absolute ripoff. But an idea of what costs are, because costs are such a live issue for everyone, obviously, because you’re paying a lot to have a baby and then…

40:08
you will pay and keep on paying and keep on paying once you have the baby and keep on paying. So, you know, obviously it’s a very live issue. I’ve seen different charts of how much it might cost overall in terms of surrogacy once you include the general costs in terms of the legal fees, the medical fees, and this is all assuming that, you know, you covered by other private health insurance or most of it’s covered by Medicare. And I’ve seen ranges of 40 to $100,000 in total, you know, sometimes a little less than sometimes a little more.

40:38
on because I have surveyed IPs over the years, a range between 35 to 90 with an average of 55 to 60 is quite common there. Is the legal fees that they could expect to pay more for the IPs then because there’s the second part of the parentage order in that as well? Oh yeah, the IPs will always pay more than the surrogate but remember the IPs are paying to the surrogate’s lawyers as well.

40:59
Okay, so I think we’ve answered that one. Well, Fonny, I think we can get to your question then. I suppose because it’s probably reasonable that some people, while they’re exploring Australian surrogacy, might also be weighing up their options for overseas surrogacy as well, because you may or may not find a surrogate here in Australia. So reading out Fonny’s question here, that in the case of international surrogacy, where I think my understanding and what Fonny has written here is that often the IP’s names go on an international birth certificate, is it still being required to get a parentage order in Australia?

41:29
as the parents of the child in Australia when you come back home.

41:32
Are there other legal steps required to then be recognised in Australia when you come back, if it’s not that parentage order? As you said, Sarah, you know, they’re in New South Wales, ACD and Queensland. To do it is illegal, even though people do it. Is it something your firm engages with? Oh, yeah, absolutely. And I could spend and regularly do a long time talking about international provisions. And the answer to this question, first of all, one has used the word parentage order and a very similar word called parenting order. So a parentage order generally refers to a transfer of parentage

42:02
state legislation that we’ve been talking about tonight, you won’t get that. So you won’t get a transfer of parentage order because you don’t qualify. Can you get a parenting order for parental responsibility? And that’s something we talk to our clients about a lot. So, you know, people who go to countries like the U S and, and come as come back as parents on the birth certificate, normally come back on an American passport for the baby, but can then apply. But then that’s where the issues come in is that there are legal issues about who is actually the parent that generally don’t, but can come back and course

42:32
issues further down the line, especially when it comes to applying for passports and the like. And so we talk to our clients about the benefit or not of getting a parental responsibility order. We bring it to PR order and that’s through the family court. And that’s something separate entirely from what happens through international provisions. And a lot of people say to us, but, you know, the illegality of it that to date, well, historically there have been a couple of referrals by a judge to the attorney general that they have to notify the attorney general,

43:02
different law. We’re talking about Commonwealth law or a PR order as in the Federal Court, which is the Federal Circuit and Family Court of Australia versus the state law that makes it illegal. So funny stuff there happens in terms of legality. Yes. So I think what I’m taking away from that is engage with a lawyer while you’re investigating things because they’re the people with the expert knowledge and

43:23
have engaged with many people doing this, and then you’re creating that connection with somebody that you can ask these questions to, and decide what is the best fit for you and your family when coming back from overseas with a bub. Yeah, wonderful. Well, we’ve got through our list of questions, and we’ve done pretty well for time there. Is there anything, Sarah, then, to sum it all up? Party words of wisdom for people at the beginning of their journey, or anything else to sum up? Just reiterate what we covered before, is that so much trust is involved. When you come to a lawyer, we will fill you full of doom and dread,

43:53
job to make you think about the negatives, but we want to help you get on there, but we get along and grow your family and have a baby or another baby. That’s part of our role is to help you think about the what ifs and be prepared. So I suppose when you come in to see a lawyer, be prepared to feel uncomfortable. Good advice, but realistic, isn’t it? Preparing people so that that’s their job. Excellent advice.

44:18
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.

44:42
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.