Surrogacy: when, not if, you will be parents

The journey to become a parent is not always easy for any couple. Increasingly, in Australia, surrogacy is a journey that more and more people – both couples and single people – are choosing to embark on. And opportunities for queer people to become parents through surrogacy are real and present.

In this very personal blog, Stephen Page, one of Australia’s leading family and fertility lawyers – and a dad by surrogacy himself – tell us of his own surrogacy journey. Stephen is a principal of Page Provan, family and fertility lawyers, Brisbane. Stephen is a Fellow of the International Academy of Family Lawyers and of the Academy of Adoption and Assisted Reproduction Attorneys.

Find out more on Steps to take to get married legally in Australia planned out beforehand

He is an international representative on the ART Committee of the American Bar Association. Stephen has received the Rainbow Keys Award from the LGBTI Legal Service, and been awarded LGBTI Activist of the Year. He lectures in Ethics and the Law in Reproductive Medicine at the University of New South Wales.

To be a dad through surrogacy while having a husband is one of the most rewarding experiences possible. I should know- as that is what I have done. My husband Mitchell and I married in Vegas in 2015, before same sex marriage was recognised here. When the laws were changed in 2017, our marriage was automatically recognised.

How common is surrogacy in the queer community?

For the last 32 years as a lawyer I have helped guide those who wanted to be parents through surrogacy. I have been lucky to have clients from throughout Australia and 30 countries overseas in 1600 surrogacy journeys. About half of my surrogacy clients over that time have been gay couples and some single men. Almost all of my gay couple clients now are married. It is now an exception to find a gay couple seeking to be parents who are unmarried. To help people achieve the dream of parenting is a dream job.

Surrogacy in Australia

Early on in our relationship, Mitchell and I decided that we wanted to get married- and to have a child. Of necessity our parentage journey was through surrogacy. Surrogacy is allowed throughout Australia, provided it is altruistic. Every State and the ACT has laws about surrogacy. The Northern Territory does not, which means those from the Top End typically have to go somewhere else for surrogacy, as the only IVF clinic in the NT will not do surrogacy. I don’t blame the doctors there. They are of the view that as the law won’t allow a transfer of parentage there from the surrogate and her partner to the intended parents, why should they cop the blame?

Our own surrogacy journey

We were very lucky to have both a local surrogate and egg donor volunteer. Each gave us the extraordinary gift of life that enabled our daughter Elizabeth to be born. It is hard to put in words what this generosity has meant. Without their generosity, Elizabeth would not exist.

Our journey was rougher than most. Most intended parents have smooth journeys. Our first pregnancy ended in miscarriage. We were gutted. Our surrogate felt that she had let us down. Of course it was not her fault. Our second pregnancy was ectopic – resulting in urgent surgery. Our third pregnancy was successful, but our daughter almost died in childbirth. Luckily, both she and our surrogate were OK. Our jewel of a daughter was born. Life has never been better. Every day I wake up, thinking that I am lucky to live with the man of my dreams, with our beautiful daughter. Every day feels dreamlike- as though I am in heaven.

How much does country of origin play a part?

Surrogacy is a complex process, involving complex science, pregnancy and the law. It has lots of moving parts, all of which have to be in alignment for it to work. However, there are certainties about surrogacy. It is a when, not an if, journey. For most, it is a certainty that they will be parents through surrogacy. There are only three reasons a surrogacy journey will not work:

1. The intended parents die. It is therefore necessary to have estate planning, so that the child is not left a penniless orphan. So far, touch wood, none of my clients have died.
2. The intended parents lose patience, and give up. If Mitchell and I had given up after the miscarriage or ectopic pregnancy, then we would not have become parents.
3. If the intended parents need a donor, but are not prepared to have a donor, then they won’t become parents. Typically, a gay couple need the help of an egg donor.

What is the cost of surrogacy?  

The fourth reason a surrogacy journey will not work is the cost. That means the intended parents do not have enough money. A typical surrogacy journey in Australia costs in the order of $70,000. Most of these costs are the costs of IVF. Going overseas usually costs more. A typical figure for Canada is in the range of $120-140,000, and the US from $150,000 to more than $300,000 depending on the location of the surrogate and the profile of the surrogacy agency.

Why get good legal advice?

It is essential to have good legal advice when undertaking surrogacy, from a lawyer who has experience in the field. When undertaking surrogacy overseas, it is wise to have lawyers at both ends- as the law overseas is not the law here. The law in this area can be extremely complex.

In some parts of Australia, especially, ACT, NSW and Queensland, it can be an offence to undertake commercial surrogacy or egg donation overseas. Get good legal advice first. What could be good practice there could be illegal here.

What if I am HIV+ 

Having HIV is not a barrier to becoming a dad. Of my approximately 1600 gay clients over the years, I have had six men as clients who have been HIV positive. It is possible for HIV positive men to be parents. It’ll be a slower journey to make sure any risks are minimised, but it doesn’t mean that HIV positive men can’t be dads. They can and have become dads.