How the story of Baby Gammy could affect you…

Posted on 21 August, 2014

That beautiful face. The face of Baby Gammy. A case of surrogacy gone very wrong.

Not every couple who travels overseas to have a baby through a surrogate mother finds themselves in the middle of an international storm, as David and Wendy Farnell have with Baby Gammy. This case is particularly complex given that the baby is a twin, was born with Down Syndrome and Mr Farnell is a convicted sex offender.

Even still, surrogacy can be a heartbreaking matter. Parents anywhere in the world, including those living here in Canberra, need to proceed with extreme caution—and never, ever, without seeking and listening carefully to legal advice.

Surrogacy is on the rise internationally, across Australia and in the ACT. In the nation’s capital, it is an arrangement whereby a woman agrees to bear a child on behalf of a couple that cannot have children of their own (‘substitute parents’).

Solicitor Emily Tighe, of family law firm Watts McCray, has seen parents struggling with one of life’s harshest realities—the desire to have a child and the inability to conceive. “While many parents have succeeded in having children this way, surrogacy remains a contentious issue,” says Emily.

The laws are intricate, inconsistent and can be confusing for many parents. The ethical issues are too.”

Layer on top of this emotions that run high and parents can become desperate which can affect their ability to carefully consider legal advice and make sensible decisions. Yet once decisions are made, and the train leaves the station, there is nothing parents can do to stop the wheels turning. Yes, many parents living in Australia have succeeded in having children through surrogates, but the sad stories are very, very sad.”

There are two types of surrogacy—partial surrogacy, when the surrogate mother’s egg is fertilised by sperm from the substitute father or a donor, and total surrogacy, when a fertilised embryo is implanted into the surrogate mother and has no genetic connection to her.

‘Because of the complexities, myths and misunderstandings, it’s important to gather basic, accurate facts and build your knowledge from there,’ says Emily.

ACT laws and regulations concerning surrogacy are tight. Here are some important facts to consider about surrogacy in the ACT and overseas.

Surrogacy in the ACT

• At least one substitute parent must be a genetic parent. At the same time, the surrogate mother or her partner cannot be a genetic parent—their ova or sperm cannot be used.
• The ACT prohibits commercial surrogacy, which means it’s illegal to pay someone to carry and deliver a baby for you, no matter where the surrogate mother lives—in the nation’s capital, in another Australian state or territory, or in another country.
• The only surrogacy arrangement permitted in the ACT—and across most of Australia for that matter—is ‘altruistic’ surrogacy where the surrogate is not paid to carry the child, but the substitute parents are allowed to pay for certain out-of-pocket expenses such as medical and travel costs and expenses related to time off work.
• You can be fined, face imprisonment or both if caught entering or seen to be part of any commercial surrogacy arrangement including internationally.
• Advertising for a surrogacy (including on the internet) is not allowed. It is offence for a third party to help source a surrogate mother.
• The birth mother must be at least 25 years of age.
• All parties must have received counselling and given informed consent before conception.

Once the little bundle of joy arrives, the Parentage Act 2004 sets out who the parents are in surrogacy. The Act presumes the:

• woman who gave birth to the baby is the baby’s mother
• birth mother’s husband or partner—who must have agreed to the surrogacy—is the baby’s father
• woman who donates ova is not the baby’s mother
• man who donates the sperm is not the baby’s father.

So where does this leave substitute parents with the baby they cherish?

Many substitute parents incorrectly assume that when the baby is handed over so is legal parentage, especially if a written agreement is in place between the substitute parents and the surrogate.

The reality

Australian law will not enforce any agreement between substitute parents and the surrogate. “Legal parentage can be transferred by an Order of the ACT Supreme Court, which is far from automatic,” says Emily.

“While the Family Court will recognise that Order for the purpose of family law proceedings, parenting arrangements can be a whole other question.”

The Court may make an Order only if the following conditions are met:

• both substitute parents apply for the Order—not just one
• at least one substitute parent is a genetic parent
• both substitute parents are at least 18 years old
• both birth parents freely agree to the Order
• the Order is in the best interests of the child
• the baby is  between six weeks and six months old
• the baby is living with the substitute parents
• the assisted conception took place in the ACT at an accredited IVF clinic.

International surrogacy for ACT residents

“Surrogacy is complex enough in the ACT but when you add another country into the mix, it takes matters to a whole other level”, says Emily.

Some issues parents need to understand thoroughly, which involve the Parentage Act and other laws, include:

• substitute parents living in the ACT who enter into international commercial arrangements are automatically breaking the law and could face jail time and a hefty fine
• substitute parents may be denying themselves the right to ever have legal parentage since the baby was not conceived in an ACT fertility clinic
• it can be extremely difficult to prove to the courts in the ACT that the birth mother in another country has received adequate counselling and given informed consent
• the baby may not be able to become an Australian citizen even if one or other of the substitute parents has Australian citizenship
• the process of applying for ‘Australian citizenship by descent’ for the baby is complex, costly and likely involves DNA testing or producing other evidence as required by the Department of Immigration.

A host of other important issues also need to be considered from a legal perspective advises the Watts McCray solicitor.

“Couples who are looking to have a child through surrogacy need to consider the quality and status of the agency or fertility clinic involved overseas; another country’s legislation and other international laws; language and cultural barriers that can make communications challenging, as well as additional and unexpected costs,” says Emily.

“One of the biggest issues is what happens if there are medical problems during pregnancy, the birth or after birth?”

“Surrogacy can been a blessing,’ says Emily. ‘But without the full facts, sound legal advice and the ability to make calm, considered decisions, parenthood for substitute parents can lead to heartache.”

The best decision you can make is to seek sound expert advice.

Watts McCray is a leading firm of family lawyers and divorce professionals with years of experience. The firm helps with separation, divorce, child support, children’s cases, property and financial services, and estate planning wills.

If you and your partner are considering surrogacy and would like to seek further information or a consult, phone Watts McCray on 02 6257 6347, visit the website or find them on Facebook.