I’m at that age where barbecue chitchat has turned to babies. And I’ve learned that baby-making ain’t easy. Some of my mates have had trouble conceiving, others have had problems during pregnancy or childbirth and all of them struggle with the day-to-day trials of parenthood. Without wanting to minimise anyone’s personal experience, some people have it tougher than others—those who can’t have their own children without the assistance of a surrogate.

People relying on surrogates fall into 4 main categories:

  1. Gay couples;
  2. Single men;
  3. Women for whom pregnancy is medically impossible;
  4. Women for whom pregnancy poses an unacceptable medical risk.

Over the past thirty years community unease about the involvement of science in conception has largely dissipated (IVF, hormone treatment, etc), but surrogacy continues to offend the sensibilities of many Australians.

Understandably. Depending on who you ask surrogacy is either exploitative or empowering. It has polarised the community for generations and will undoubtedly continue to do so.

The patchwork of Federal, State and Territory laws perfectly reflects the division in the community on this issue. Surrogacy law in Australia is as much a body of loopholes as it is a body of law.

All States and Territories prohibit commercial surrogacy, but most allow for altruistic surrogacy. Except the Northern Territory. Or if you’re gay and living in Western Australia. Or if you’re single and living in South Australia. The list of exceptions goes on.

And just because you can’t enter into a commercial surrogacy arrangement in Australia, nothing stops you from entering into a commercial arrangement overseas. Unless of course if you live in the ACT, New South Wales or Queensland where you could be jailed for up to one, two or three years respectively. You get the picture. It’s complicated.

There are also rules around whether surrogacy can be ‘traditional’ or ‘gestational’. Traditional surrogacy is where a surrogate is donating her own egg as part of the process. She is both birth mother and biological mother. Gestational surrogacy is where another person’s egg is used and an embryo is implanted into the surrogate’s uterus.

It’s generally accepted that gestational surrogacy has less of a psychological impact on the surrogate and reduces the risk of a dispute about the child down the track.

Enter Andy, Simon, Carla and baby Adeline*

After a failed attempt at commercial surrogacy in India and an increasingly hostile regulatory environment in South Asia, Andy and Simon found someone in their home State of Victoria who volunteered to help them.

Carla acted as their surrogate and egg donor in a ‘traditional’ surrogacy arrangement. The Victorian Patient Review Panel discourages these traditional arrangements by only allowing clinics to participate in insemination or fertilisation if a third party donor egg is being used.

That’s not much of a disincentive because a woman who is willing to act as both surrogate and egg donor usually doesn’t need clinical assistance to fall pregnant. The miracle of biology allows healthy, fertile, consenting adults to ‘formalise’ their traditional arrangement at home on their own terms.

This area is a legal minefield and you don’t want to find yourself on the wrong side of the law.

If you’re exploring surrogacy as an option to start a family, or if you’re interested in acting as an altruistic surrogate, call the team at Farrar Gesini Dunn to find out where you stand.

Tom Mainwaring

Tom Mainwaring is a family lawyer at our Melbourne Office.