Intended Parents and Surrogate

Surrogacy is a beautiful gift bestowed upon intended parents and is also incredibly rewarding for the surrogate/gestational carrier! Every surrogacy journey looks different and we are here to share with you the amazing journey surrogate mothers go through. Aileen Miller of Four Element Photography, one of Perth’s leading birth photographers absolutely loves the positivity surrounding a surrogacy birth and would be incredibly honoured to be part of your special story!

What is surrogacy?

Surrogacy is when a fertilised embryo is planted into the uterus through IVF of a woman that has no biological connection to the embryo.

What type of scenarios are likely for surrogacy?

Fertility issues – some women have issues conceiving and can either not get pregnant or cannot sustain a viable pregnancy. Women who choose surrogacy for this reason have generally tried for years and have been unsuccessful. Unsuccessful use of medications, unsuccessful attempts at insemination or IVF or women with recurrent pregnancy losses (miscarriage and stillbirth). Woman who have or are currently receiving chemotherapy are likely to have fertility issues as well as women who have been exposed to high levels of radiation through work or environmental causes.

Health issues – sometimes women are born with issues that affect the functionality of the reproductive organs and some women also sustain injuries to their reproductive organs over their life through STI’s, previous birth injuries, ectopic pregnancies, cervical cancer, terminations and unfortunately sometimes caused by assaults.

Age – as women get older their eggs are more likely to become damaged and be less likely to result in a viable pregnancy as well as the toll pregnancy would take on their body being a common concern.

Same sex couples – when there is a same sex couple (generally male) that would like to expand their family, surrogacy is a wonderful option. They can choose to have the embryo fertilised by one of their sperm or by another sperm donor.

Surrogacy Laws in Australia

Are there any legalities surrounding surrogacy?

- In Australia it is illegal for you or your partner to be paid to carry a surrogate baby however there will be negotiated allowances for pregnancy, birth, and postpartum expenses to be covered

- It is illegal to enter into a commercial surrogacy agreement internationally (Western Australia)

- Intended parents and surrogates can advertise their desire for surrogacy however they are not allowed to pay for the advertising of the desire

- Intended parents must be 18 years of age or older

- Must be a single female or a heterosexual couple/marriage (only applies to Western Australia)

- Surrogate and her partner must be 25 years or age or older

- If the surrogate mother chooses to keep the baby the law can not enforce the surrogacy agreement

- If the intended parents choose not to accept the baby, the law can not enforce the surrogacy agreement

- If the surrogate mother chooses to keep the baby, the intended parents can legally enforce the recovery of prescribed costs related to the baby

- When the baby is born, it will be registered in the state it was born in

- When the baby is born, the surrogate mother and her partner are listed as the parents on the birth certificate

- After the birth has been registered, the intended parents file to court for a Parentage order in the state they reside in. The birth certificate will then be reissued with the intended parents’ names and the surrogate and her partner’s name will be removed. This process much been done after 28 days following the birth and before 6 months of life

- All parties of the arrangement (intended parents, surrogate, and surrogate’s partner) must seek independent legal advice, counselling, and medical suitability screening at least 3 months prior to the arrangement

- Arrangements must be in writing and signed by all parties (including donors)

- The surrogate must have previously given birth to a live child

- Surrogacy must be approved by the Reproductive Technology Council (Western Australia)

- An intended mother must be unable to conceive naturally, unable to deliver safely or would likely conceive a child with a genetic abnormality or disease

What are the criteria that need to be met to be a surrogate?

- Surrogate and her partner must be 25 years of age or older

- You do not require a partner to be a surrogate mother

- Surrogates can not be peri-menopausal or menopausal

- Must not have a history of pregnancy-related illnesses or complications

- Must not suffer from any significant psychiatric disorder that could impair the decision making

- The surrogate is not allowed to use her own eggs

- Surrogates must have previously birthed a live baby (NSW and QLD exempt)

- You are not able to have intercourse during the time from conception attempts beginning and a confirmed positive test. This is to ensure that the successful pregnancy is indeed the intended parent’s embryo. Some intended parents choose to include in the contract that the surrogate is not to engage in intercourse through the whole process (agreement signed to after the birth of the baby)

- If you have previously been married and have not finalised the divorce, this could affect the agreement and parentage orders

- Laws regarding surrogacy need to be followed based on the laws of the state the intended parents reside in

- You need a medical clearance that your body is in optimal form to sustain a healthy pregnancy and delivery

What are the criteria that need to be met to have a surrogate?

The laws surrounding your individual surrogacy journey will be controlled by the surrogacy laws of the state the intended parents reside in. In Western Australia single men and same-sex male couples can not pursue surrogacy unless they go through an international agency. Northern Territory do not have any surrogacy laws meaning they do not allow or prohibit it. Women with fertility issues will not qualify for surrogacy unless they have attempted to use donor eggs in their own uterus first. Inability to carry a pregnancy due to psychological needs will be considered for surrogacy.

- Single men

- Same-sex male couples

- Single women and heterosexual couples where the woman does not have a uterus (born without a uterus or received a hysterectomy due to medical reasons)

- Single women and heterosexual couples where the woman can not carry or should not carry to term due to medical conditions (chronic health condition, medications incompatible with pregnancy, history of recurrent miscarriages, still birth or preterm birth)

- Same-sex female couple where both women have been deemed medically unable to carry a baby to term

Do I have a say in my birth?

Yes. Body autonomy is maintained throughout your pregnancy and birth. A care plan and birth plan will be negotiated between the surrogate and intended parents, however the surrogate is able to make to final decision regarding her body, even if it effects the baby. There are no rules regarding what the surrogate can and can’t do with their body while carrying the baby of intended parents, but surrogates will generally treat the pregnancy and the baby much the same as if she were pregnant with her own