The 2008 reforms opened up altruistic surrogacy in Victoria as an option for gay men wanting to become parents. The word surrogate means ‘one that acts in place of another’. Surrogacy is when a woman agrees to conceive, carry and birth a baby for another person or couple to raise.
The Victorian Assisted Reproductive Treatment (ART) Act 2008 (in effect since 1 January 2010) effectively legalised the option of altruistic (unpaid) surrogacy in Victoria, opening this up as an option for gay men to become legal parents through Victorian fertility services. It removed the requirement that a woman be medically infertile to access the fertility services needed to be a surrogate, and allowed for recognition of the legal parentage of the ‘commissioning’ parent/s.
All surrogacy arrangements in Victoria must be altruistic. That is, the surrogate cannot be paid to act as a surrogate. However, she can be reimbursed for costs she incurs as a direct consequence of entering into the surrogacy arrangement. To be a surrogate, a woman must be at least 25 years old, and have previously carried a pregnancy and given birth to a live child. A friend or relative may be able to act as your surrogate, but you are not allowed to advertise for a surrogate, for example through television, radio, the internet or other public means.
In addition, only ‘gestational’ surrogacy is allowed in Victoria. This means that you will also need to have an egg donor, as you are not allowed to use the surrogate’s own eggs to conceive. Some clinics may have egg donors available. However, clinics often find it difficult to recruit egg donors, so you are likely to need to find your own. You are allowed to advertise that you are seeking an egg donor, but must have approval from the Minister of Health, under Section 40 Of the Human Tissue Act 1982 before doing so. Egg donation must also be altruistic, although the donor can also be reimbursed for actual medical and associated travel costs incurred.
All surrogacy arrangements must be approved by the Patient Review Panel. The Panel must be satisfied that all ‘parties’ have received counseling (from a fertility clinic, see below) and legal advice, and that they are ‘prepared for the consequences if the arrangement does not proceed in accordance with their intentions’ – for example if the commissioning parents decide not to accept the child, or the surrogate refuses to relinquish them. The experience in countries where surrogacy has long been an option is that while such disputes might be the subject of midday movies, they are extremely rare in reality.
In addition, you might have compromised fertility yourself, and require a sperm donor. Fertility clinics have clinic-recruited sperm donors available; donors are required to be ‘identity release’ – that is, the child has the right to identifying information about them at age 18, or earlier with parental permission or if judged mature enough by a counsellor. As their parent, you can also request this information, although the donor must consent for it to be released to you. Alternatively, you might prefer to ask someone you know. The issues for a known sperm donor will be much the same as for an egg donor – see Information for prospective sperm donors, for information about the process involved.
Asking a prospective surrogate or egg donor
Just as it can be difficult for men to decide whether to be a sperm donor, it might be hard for a woman you ask to be your surrogate to decide whether she is willing. There are certainly women who want to be surrogates, and who find it a very fulfilling role. Sometimes women will make the offer themselves, and sometimes there might be a woman in your life willing to do it, whom it might not at first occur to you to ask. In the case of altruistic surrogacy, surrogates are usually a very close friend or relative of the commissioning parent/s.
Remember, you might ask a woman who loves you dearly and supports your desire to become parents, who still might feel that carrying a baby for you is something that she cannot do. Trying to conceive, pregnancy and birth is hard on most women, physically and emotionally, and even if you are willing for her to be very involved with your family, she might find it difficult to imagine not actually parenting a child to whom she has given birth. It might be worth trying to find stories from families (same-sex and otherwise) who were created through surrogacy, including in Australia and elsewhere, when talking to a prospective surrogate. We have also written a section on Information for prospective egg donors and surrogates (available as a PDF for download here) that it might be helpful to give her.
The issues might be similar in some ways for prospective egg donors. Egg donation is not anywhere near as arduous as carrying and birthing a child, but the process of egg donation involves taking hormones and undergoing a medical procedure. Probably more importantly, as with prospective sperm donors, helping someone to create a child by donating is a profound act, and there might be many reasons that she (and/or her partner, if she has one) does not feel that this is a role she wants to take on, many of which are likely to be very separate from your relationship with her, or her feelings for you. It might be challenging, but try not to take a refusal too personally.
On the other hand, there might well be someone in your life willing to be an egg donor for you that you have not yet considered asking – there is only one way to find out! You are not allowed to advertise to find a surrogate, but you are allowed to advertised to find an egg donor. See the discussion in Information for prospective lesbian parents: finding a sperm donor, thinking it through for more discussion of issues that might be relevant to finding and talking to a prospective donor or surrogate.
Becoming a client of a fertility service
To conceive a child through altruistic surrogacy, you need to use a fertility service. Victorian law requires everyone involved in the arrangement to have sought legal advice, and to go through a number of procedures (the clinic will assist you with these):
- a police check, to ensure neither of you has ever been convicted of a violent offence or charges have been proven against either party in relation to a sexual offence
- a child protection order check, to ensure neither of you has had a child removed from your care, and
clinic counselling, to ensure you both understand the implications of donor conception and consent to the procedures involved.
- An overseas police check is required if either party has resided overseas for a consecutive 12 month period in the past 10 years. There is a presumption against treatment for anyone who does not pass these checks and treatment must not be provided. If barred, you can appeal to the Patient Review Panel, and subsequently to the Victorian Civil and Administrative Tribunal (VCAT).
The intending biological father will also undergo standard health checks, including for HIV.
The journey with your egg donor and surrogate
The donation process and storage of donor information
The process of conception with an egg donor in Victoria involves a fair amount of contact, even with a donor you did not know previously. The minimum is counselling of all the parties, separately and jointly. The medical procedures are lengthy and invasive; essentially the first half of an IVF procedure, hyperstimulation and ‘harvesting’ of multiple eggs from her ovaries. Awaiting the results can be nerve-wracking for everyone, and if no eggs from her first donation lead to a successful birth, you may all go through this multiple times.
A key principle of Victorian law is that people conceived via donation in Victoria to have the right to identifying information about their donor at age 18, or earlier if they have parental consent and a counsellor has judged that they are able to handle the information. All Victorian donor information is lodged, stored, managed and released by the Victorian Registry of Births, Deaths and Marriages. If you conceive via egg donation at a Victorian clinic, they will give your child’s donor information to the Registry. For more information see the information sheet ‘Donor information and registers’.
The surrogacy process
Your contact with the surrogate during the processes of trying to conceive, pregnancy, birth and after will necessarily be much greater than with your egg donor. The surrogate’s menstrual cycle is pharmaceutically ‘managed’ to enable transfer of an embryo (at least for the first egg successfully fertilised from any donation cycle) – at the appropriate time. Then you wait for a pregnancy test two weeks later, and if that is positive until 12 weeks, when the highest risk of miscarriage abates.
The processes of attempting conception, pregnancy and birth are amazing for everyone involved, but potentially exhausting and stressful. Your relationship with your surrogate (and her partner) will determine the extent to which you have contact and give support to each other during these processes.
Everyone will need to talk openly, perhaps many times, about their hopes for the birth and early infancy. What sort of birth does the surrogate want to have? What professional and other supports will she need at this time? Is she willing for you to play a role, and if so what? Would she be willing to breastfeed, at least during the period when her body is producing colostrum? Is this what you would want? When and how will you take home the baby, and what sort of contact might she have with your family in the early days?
Options for ongoing contact
Historically, same-sex couples have tended to be more open with their children about the circumstances of their conception than heterosexual couples; after all, it is obvious that same-sex couples needed some help to create their families!
If you had a prior relationship with your donor and/or surrogate – or even if you did not – you may also decide to welcome one or both women into your family’s life in a variety of ways. You will probably have some ideas about whether you would like to have ongoing contact with your egg donor or surrogate, after they have helped you create your family. This is something you should discuss in detail and agree on before you decide to go ahead. It is worth reading Information for prospective sperm donors to see which issues might be relevant in your situation.
Altruistic surrogacy in Victoria is a new option for gay men. It remains to be seen what choices men who create their families in this way will make around ongoing contact with their donor and/or surrogate. Many couples who conceive through overseas surrogacy choose to have ongoing relationships with their surrogates, at least. Some have contact with their egg donors, but this may not be an option if egg donation in that country is generally anonymous. The relationships between men and their Victorian egg donors and surrogates are likely to be different; because they live in the same country, because they are altruistic, because men must usually know or find them, and because of the laws around release of donor information.
One possible parallel is the variety of relationships that lesbian couples and single women create with their donors. Some known sperm donors are just happy for the child/ren to know their name, see their photos, and perhaps meet up when the child/ren are old enough to show an interest. Some live in another state or country, and may exchange cards, emails and the occasional visit. Some may visit a few times a year, others more often. Some become a significant part of family life, spending regular time, perhaps holidaying together and becoming regular baby-sitters. Some children call their known sperm donor ‘Dad’, even though the man (and his partner, if he has one) does not share parenting responsibilities. Some do not. The diversity of people’s choices is endless, as are the diversity of options open to you and your donor and surrogate to negotiate.
It is also important to bear in mind how family law works in Australia. If you use altruistic surrogacy in Victoria, you will be your child’s legal parent/s once your substitute parentage order has been processed (see ‘Establishing your legal parentage’, below). However, anyone with ‘an interest’ in a child’s welfare (such as a grandparent, step-parent, donor or surrogate) can apply for a court order creating contact or other arrangements with regard to the child. You can make an agreement with your donor or surrogate about a whole range of issues, and we recommend that you do. See the discussion about making agreements with known donors in Information for prospective lesbian parents for issues to consider. However, these agreements are not legally binding, should there be a dispute. You cannot make a legally-enforceable contract or agreement (written or verbal) about a child.
If a dispute arose, a court cannot change your status as your child’s legal parents (once the substitute parentage order is made), but it will make its judgement – on things like who has contact with a child, who lives with them, and who makes decisions about their lives – on the facts of the case, and what they see as a child’s best interests. Courts can award contact, and even, in some cases, might award some parenting responsibilities, to someone other than the legal parents, if they think this is in a child’s best interests.
Establishing your legal parentage
At the time of writing, the only way that both men in a same-sex couple can be recognised as their child’s equal legal parents in Victoria is if the child is conceived and born through altruistic surrogacy here. This is done by transferring legal parentage from the surrogate (and her partner, if she has one) to you through a Supreme or County Court order.
When a baby is born in Victoria, the woman who gives birth is deemed to be its mother, and is recorded as such on the birth certificate. Her partner, if she has one, is recorded as the father or parent. As the commissioning parent/s of a child conceived through a surrogacy arrangement and treatment procedure (that is, IVF) in Victoria, you then apply to the Supreme or County Court for a ‘substitute parentage order’ naming you as the child’s legal parent/s. You must live in Victoria when you make the application, and make it no less than 28 days after a child’s birth but before six months.
The Court will make the order once it is satisfied:
- that the order is in the child’s best interests
- that the surrogacy was commissioned through a fertility clinic and approved by the Patient Review Panel
- that the child is living with you, the commissioning parent/s when the application is made
- that the surrogate (and her partner if she has one) received no material benefits from the arrangements, and
- that the surrogate and her partner freely consent to the order.