Altruistic surrogacy (which in Victoria also requires egg donation) was only legalised in this state in 2008. Here we explain what is involved, and touch on some issues that might arise for you, in considering whether you are willing to be a donor or surrogate for someone.

A new option for gay men to become parents

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.

If you have been approached by a gay couple or single man to be their egg donor or surrogate, they might not have explained to you the limitations of their other options for becoming parents. At present, same-sex couples are not allowed to apply to adopt in Victoria, although in 2010 a Victorian Court approved one member of a same-sex couple’s application to adopt an older child for whom they had both been long-term foster carers. Nonetheless, even if same-sex adoption was legalised, there is a tiny number of ‘stranger’ adoptions across Australia, particularly of infants. Some men become parents through overseas commercial surrogacy services, but these are very expensive ($40,000 to $200,000 at the time of writing). Some men co-parent with a single woman or lesbian couple, but they cannot be the child’s legal parents, and this option is not possible or desirable for everyone, for a variety of reasons.

Some foster care agencies have long recognised that gay men can provide loving, stable homes for children requiring short or long term foster care or those on permanent care orders. Fostering can be a very positive experience for everyone concerned, but it has its own challenges, and is not the same as legal parentage of a child from birth, who might be biologically related to at least one of the parents.

What is surrogacy?

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.

All surrogacy arrangements in Victoria must be altruistic. That is, if you are a surrogate, you cannot be paid to act as one. However, you can be reimbursed for costs you incur as a direct consequence of entering into the surrogacy arrangement. To be a surrogate, you must be at least 25, and have previously carried a pregnancy and given birth to a live child. You might be a friend, relative or acquaintance of the prospective commissioning parent/s, but they are not allowed to advertise for a surrogate, for example through television, radio, the internet or other public means.

Just as it is a difficult decision for men about whether to be a sperm donor, it might be very difficult for you to decide whether to be a surrogate, particularly if the person asking you is a very close friend or family member. There are certainly women who are willing to be altruistic surrogates, and who find it a very fulfilling role. In the case of altruistic surrogacy, they are usually a very close friend or relative of the commissioning parent/s.

It is worth trying to find stories from women who have been surrogates, including in Australia and elsewhere, when thinking about whether or not you are willing to be a surrogate. However, although you might strongly support the prospective father/s desire to parent, you might feel that carrying a baby for them is something that you cannot do. Trying to conceive, pregnancy and birth are hard on most women, physically and emotionally, and even if the prospective father/s are willing for you to be very involved with their family, you might find it difficult to imagine not actually parenting a child to whom you have given birth.

We highly recommend that you read the material for prospective sperm donors and consider which issues might be relevant to you in making your decision, or negotiating the arrangements under which you might agree to be a surrogate.

You will need to sign consent forms at the clinic (see below) and undergo counseling, but we also recommend making your own agreement – even though it cannot be legally binding – especially if you are likely to have ongoing contact with the family. Agreements are a very useful tool for thinking through all the major issues. Clinic counselling can also help. Many clinics offer a paid service of a counselling ‘information session’ before committing to any treatment, which might be helpful.

All surrogacy arrangements must be approved by the Victorian 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 him or her. The experience in countries where surrogacy has long been an option is that such disputes might be the subject of midday movies, but they are extremely rare in reality.

What is egg donation?

Only ‘gestational’ surrogacy is allowed in Victoria. This means that the commissioning parent/s also need to find an egg donor, as the surrogate’s own eggs are not allowed to be used to conceive. Many ask friends or relatives. Prospective parents are allowed to advertise that they are seeking an egg donor, but must have approval from the Minister of Health before doing so. Egg donation must also be altruistic (that is, unpaid) although egg donors can also be reimbursed for actual medical and associated travel costs incurred. Egg donation cannot be anonymous in Victoria. All egg donors meet the recipients of their donation, and are required to attend counseling separately and together, and sign consents to the processes involved before they go ahead.

Just as it is a difficult decision for men about whether to be a sperm donor, it might be hard for you to decide whether to be an egg donor, particularly if you are close to the person asking you. Even if you are very supportive of the father/s desire to parent, you might not feel that this is something you can do for them. Helping someone to create a child by donating is a profound act, and there might be many reasons that you (and/or your partner, if you have one) do not feel that this is a role you want to take on, many of which are likely to be very separate from your relationship with and care for the prospective parent/s.

Read the material for prospective sperm donors and consider which issues might be relevant in making your decision, or negotiating the arrangements under which you will donate. You will need to sign consent forms at the clinic (see The process of egg donation and surrogacy,) and undergo counseling, but we also recommend making your own agreement, even though it is not legally binding, especially if you are likely to have ongoing contact with the family.

Storage and release of information about children’s origins

Information about a child’s donor origins is lodged in the Central Donor Register at the Victorian Register of Births, Deaths and Marriages. Children conceived through donation have the right to access their donor information, and to contact their donor at age 18 if they wish, or earlier with parental consent or if a counsellor judges them to by sufficiently mature. See Donor information and registers for more information on these issues.

Donors can also seek identifying information about children. Before children are 18, a donor will only receive this information with the parent/s’ permission. After the child is 18, they must consent for this information to be released. In practice, the parents of many children conceived through sperm donation obtain such information when their children are much younger. If you are an egg donor, you will have had to have had some contact, at least, with the recipients of your donation before it goes ahead. It is possible that contact will be ongoing, even if it is only occasional.