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Surrogacy

June 15th, 2009

This online guide to the issue of Surrogacy for Gay Men is designed to provide information based on the experience of many gay men and couples who have created their families via Surrogacy. It is not an exhaustive guide and any information contained here should not be taken as legal advice. You should alwaysseek appropriate legal advice from a qualified practitioner. Surrogacy is an area where changes occur regularly and as such information in this guide may be out of date. You are encouraged to join the Gay Dads email groups and post questions to see if other have experiences that they can share. In all cases you should seek professional advice from qualified people in the relevant jurisdictions.

Surrogacy refers to an arrangement whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child for others to raise. She may provide the egg for the child or may gestate a donor egg, depending on the type of arrangement agreed to. The word surrogate just means appointed to act in the place of.

A surrogate is a woman who carries a child for a couple or single person with the intention of giving that child to that person/people once the child is born (also called surrogate pregnancy). The surrogate may be the baby’s biological egg donor (traditional surrogacy) or she may be implanted with someone else’s fertilized egg (gestational surrogacy).

Such an arrangement generally requires legal intervention, as the laws regarding assisted reproduction differ from state to state and country to country. It is important that each party in such arrangements has a clear understanding of the risks involved with such arrangements. Further information on the legal issues appears later in this text.

Contracted surrogacy agreements can be divided into two categories: commercial and non-commercial, or “altruistic.” Commercial contracted surrogacy arrangements are those in which the party seeking a child agree to pay a fee to the surrogate beyond the cost of her medical needs. In contrast non-commercial or “altruistic” contracted surrogacy arrangements are those where the surrogate agrees to receive no payment or reward, although it is rare that a total non-commercial agreement is ever made as it is expected that the commissioning party will pay the pregnant woman’s medical bills. Altrustic agreements are often between parties who are family or friends prior to the arrangement. It is important to note that you are not “buying” a baby. The payments made to the surrogate are by way of compensation.

In the United States, the payment for a surrogate mother currently appears to be in the range between US$25,000 and $30,000, however the whole procedure can cost upto AUD$150,000 to $200,000. The fees for the rest of the process- including fertility clinics; lawyers; medical fees; and agencies and/or egg donors (if they’re used) generally cost more than the fee going to the surrogate. Gestational surrogacy costs more than traditional surrogacy, since more complicated medical procedures are required.

Surrogacy in Canada is typically less costly than the US and costs may be in the range of $100,000 to $150,000. Surrogacy in India is much cheaper. It appears costs range from $35,000 to $45,000.

Contrary to popular belief, surrogates are not all poor women being exploited for their fertility. Many are middle-class women who want to help make families. They come from all walks of life. Some are done having children of their own, while some want more children in the future.

Surrogacy is a method of assisted reproduction. In some cases it is the only available option for a couple who wish to have a child that is genetically related to at least one of them. People who choose surrogacy may be:

* single men or gay male couples
* heterosexual couples who are unable to have children due to a difficulty suffered by either partner.
* single women or lesbian couples who can’t or don’t want to go through pregnancy or artificial insemination
* A female, married or otherwise, who is infertile for some reason.

These problems may include absent or poorly functioning ovaries, an absent or malformed uterus, a maternal disease which precludes pregnancy but not motherhood, recurrent pregnancy loss, or repeated IVF implantation failures.

It has been suggested that one of the major motivations for turning to this method of reproduction is the difficulties associated with adoption in contemporary society. These include the fact that changes in social attitudes and legislation have led to fewer women placing their children up for adoption, and couples may wish to avoid being asked to adopt a child of a different race or having to go through the difficulties of international adoption. Adoption in Australia, with the exceptions of certain states, is currently not an option available to gay male couples.

There are two major types of surrogacy:

* Partial or genetic contracted surrogacy (also known as traditional surrogacy), in which the gestational surrogate is impregnated with the sperm of the commissioning father (usually through artificial insemination). In these cases, the gestational surrogate is genetically linked to the child but she relinquishes any legal rights of parentage over the child to the commissioning parents.

* Complete or gestational contracted surrogacy (also known as gestational surrogacy). Using in vitro fertilisation (IVF), the Intended Parents produce an embryo that can then be transplanted into the surrogate for her to gestate and give birth to after nine months. In gestational contracted surrogacy the pregnant woman makes no genetic contribution to the child.

The emotions involved in surrogacy are very strong on both sides. Surrogates need to make sure they have appropriate support before choosing surrogacy. Support organizations exist for couples choosing this option.

Research carried out by the Family and Child Psychology Research Centre at City University, London, UK in 2002 showed surrogate rarely had difficulty relinquishing rights to a surrogate child.

Most surrogacies end without problems, with the parents getting their child(ren). Most stories (especially movie dramas) about the subject focus on the problems of the practice, and on the conflicts that may arise from it, but this is rare in reality.

Is surrogacy an option for gay men wanting to be fathers in Australia? This is a complex and changing issue. Surrogacy for Gay Men is available in some states such as Victoria, but in all cases it is not commercial surrogacy. The law on surrogacy is currently under review in a number of states and is subject to substantial change. If you are interested in doing non-commercial surrogacy in Australia, it is strongly recommended that you seek legal advice before proceeding.

Surrogacy for Australian Gay Dads is unfortunately something that generally needs to be done overseas. Most members of Gay Dads Australia that have pursued surrogacy have pursued it in the US via an agency dedicated to providing surrogacy services. It is not a easy process, but also it is not that difficult. The comments in this manual are taken from members experience using a small number of agencies. Although there are many agencies in the US that handle surrogacy for gay men, many of the issues and processes will be the same.

The best place to get started is by talking to other gay men who have undertaken the process. You can meet and chat to us by joining our discussion list at the Gay Dads Australia website [www.gaydadsaustralia.com]. You should also visit the Surrogacy Agency websites to find out more information. We recommend that as a first act is that after you have gathered some initial information that you call the Surrogacy Agency and have a chat to them.

You will need to plan at least 2 trips to the US (or Canada or India) during the surrogacy process. Many gay dads make several more trips during the process and pregnancy. The most common reasons to travel are:

• Initial Meeting at the Surrogacy Agency.
• Match Meeting with your potential Surrogate. Some members have been able to conduct this meeting over the phone, however it appears that most agencies prefer a face to face meeting.
• Meeting with a Fertility Clinic for Consultation and Semen Deposit and Analysis.
• Visit to the Fertility Clinic with your Surrogate for the In-vitro Fertilization procedure.
• Visits to see your surrogate during the pregnancy. In the US, this visit will be in your surrogate’s home state, which may not be California.
• Visit for the birth. In the US the birth will be in the Surrogate’s home state.

The Contract is the first commitment that you will make. It is a long and wordy contract as you would expect. It is important that you read it and understand what you are committing to. Speak to others who have been through surrogacy and do not hesitate to contact the Surrogacy Agent or your Lawyer if you have any questions.

There are other agreements and contracts that you will be required to sign during the process. There will be agreements in relation to Insurance. These are particularly important. Unlike Australia, there is no universal health coverage in the United States. Insurance is essential. It is not cheap but necessary. In Canada and India the cost of insurance are significantly cheaper than the US.

This can be an exciting and emotional time for intended parents. Meeting your surrogate for the first time is a chance to get to know each other, and ultimately agree to work together. Finding a surrogate can take anywhere from 1 month to 8 months (or longer). Surrogates can come from a number of states outside California, however you can request one in California if that is your preference. Be warned that this may mean that your match will take longer. Finding surrogates in Canada can be difficult. Canada has a smaller population, and doesn’t not have the commercial surrogacy industry that the US has. In India, the surrogate is usually arranged for you by the Agency. In India you are unlikely to actually ever meet your surrogate as the industry in India operates very differently to the US and Canada.

Women who choose to be surrogates are screened by Growing Generations from a health and psychology perspective. The match meeting is your chance to screen them, and they you. You will generally be guided by a case worker from Growing Generations prior to your match meeting and they will help you develop a series of questions to ask during the meeting. The meetings are mediated by your case worker, however usually if things go well, the intended parents and the surrogate will continue talking after the meeting in a cafe or the like. This is a good idea as it gives both parties a further opportunity to get to know each other.

Some intended parents have been able to conduct their match meeting over the phone instead of face to face.

Choosing an Egg Donor is another step you must take. There are numerous agencies that provide egg donor services and you should “shop” around. Egg donors can cost from US$8000 upwards. Previous egg donors often charge higher fees. You will generally get full personality, educational and medical profiles of the egg donor together with photographs. Some agencies also provide videos.

An Egg Donor is a very personal choice. In many cases the egg donor that is chosen results in a successful pregnancy, however some members have had to select a second egg donor later, due to difficulties relating to successfully becoming pregnant.

The transfer procedure is another one of those emotional and challenging times. The intended parents and the surrogate attend the fertility clinic together for the procedure. Sometimes, the intended parents are not present and the surrogate alone attends. This is common if you don’t become pregnant the first time.

Intended parents need to be realistic about the chances of becoming pregnant the first time. Many of us have been successful at the first attempt, however there are many others for whom repeated attempts are required before a pregnancy occurs.

Once you find out that your surrogate is pregnant the next phase of the journey begins. Like in non-IVF procedures, pregnancy can fail for a number of reasons. This is true of surrogacy too. The first 3 months are usually the time of greatest risk so it is important to keep perspective.

You will be thousands of miles away from your surrogate and communication by email or phone becomes essential. It is recommend that you discuss the sort of level of communication you will have early on to make sure your relationship with your surrogate thrives.

For the intended parents, managing the pregnancy can be difficult. After all, you are half a world away and not present for the day to day life of your surrogate. Come to an understanding early on about how regularly your surrogate will visit her doctor.

The first 3 months are usually governed by the contract that the surrogate has signed but after that you are on your own. Surrogates usually have had children before and know a lot about pregnancy.

The Birth is the most amazing part of the journey (though not the end of it!). You will most likely be present at the birth but you will need to make arrangements with the hospital well in advance. You will be in the US for at least a week after the birth obtaining passports, court orders and other things so plan you accommodation keeping in mind you will have a new born baby with you.

In all this, one thing we have learned is that even though you are using an agency like Growing Generations, it is important (indeed necessary) that you Project Manage the entire process. You need to proactive in all your dealings with agencies, doctors, insurance etc. Don’t assume anything, always check it out.

All babies born through surrogacy in the United States are entitled to US citizenship themselves.

They will have an American birth certificate (certificate of live birth) and unless separate adoption procedures or court orders overrule this, will show the surrogate as the ‘mother’ on the birth certificate, and (usually) the intended father who provided the sperm as the ‘father’.

In some cases dependant on the relative US State laws, it may be necessary for a pre-birth judgement to be obtained regarding the actually paternity, especially when the surrogate is married. This is because some relevant state laws dictate that the husband of the woman giving birth should automatically be recognised as the ‘father’. Another way to establish paternity is a post-birth judgement. It is important to explore which option is correct for your situation by seeking local legal advice well before delivery.

To obtain a US passport for your child, you must first have obtained the relevant paperwork from the birth hospital, which they prepare for the ultimate issuance of your child’s formal birth certificate. This paperwork is sent to either the relevant local authority or State capital (once they have the paternity orders if relevant) and it is paramount that you work with the hospital in advance, so that they speed up this process as soon as your child is born so that everything happens within days, not the usual weeks.

Further to the application of a US passport, there are going to be numerous forms that as new parents, you’ll need to complete over the coming months. We have detailed some below but you do need to do your own research. Download/obtain as many forms as possible in advance. Take them all with you to the birth. Ask you surrogate to sign as many of the applicable ones as possible. If you need authorities, check out what’s necessary there too and type up appropriate letters for your surrogate to consider/sign. Make sure there’s no clashes with maiden names/married names and react accordingly. Think things through.

Throughout some of the US processes, you will need certain paperwork witnessed by the US equivalent of a Justice of the Peace, called a Notary Public, and they are useful for having documents authenticated such as when the surrogate gives permission for the application for a passport, baby to travel etc. In California at least, they can be found in US Post Offices, or the sub-outlets of these (usually privately owned). Notaries can also be found in Australia.

Once you’ve obtained the preliminary paperwork from the relevant local authority, you can then head along the way of obtaining a US passport for your child.

You will need a photograph of your child with their eyes open (not so easy), facing directly at the camera with a white background (oh and whilst not wearing either a hat or sunglasses either). A digital shot is best as it can be resized appropriately by a developer to further fit within the guidelines, and more than one copy of the same image can be produced quickly at the same time. Depending on your timing you may try to stand over your baby who is lying on a white-sheet bed in the hospital, or head to a post office where you’d hope they’d appreciate the difficulty of it all and take a few goes of getting that perfect snapshot.

If you are planning to leave the USA before 6 weeks or so (which most of us do), you will need to utilise an Expediting service so that you receive your child’s passport in time. These services will pretty much turn successful applications around within a week. Of course you pay an expedition fee for such services, but generally it is all well worth it. These companies’ branches are usually based in major cities such as Washington, Dallas, San Francisco, etc. and you will need to have the relevant paperwork approved by a local postal office (usually) before couriering the completed application over to the regional office.

Usually, both parents from the birth certificate are needed to be present at the authorised accepting office (post office) to prove that both consent to the application of the child’s passport. Check out the conditions of the expediting service. You can provide written authority from the other parent (usually the surrogate) at times, especially when she may still be in hospital recovering from the birth.

Expediting services include: http://www.americanpassport.com (this is the service that a number of us have used); and http://www.visa4you.net/child-passport-1.htm (which we have not used).

You will find very detailed instructions on the website.

All babies born through surrogacy in India to non Indian couples are born “stateless”. That is, they do not have the benefit of Indian citizenship. It is therefore important to obtain Australian Citizenship via descent before you can leave India with your baby. Once you obtain Australian citizenship, you then must get an Australian passport.

It is unclear how this process will work in India at this stage as no gay men or couple that we are aware of have had babies there yet. Several are pregnant and we expect some clarification on the processes in the near future.

In most US states, you’ll need an attorney to attend to the surrogate relinquishing her parental rights in your favour. In some states that can be arranged in advance of the birth (or, in California for example, you can get a pre-birth judgment placing both dads on the birth certificate.) Whatever, you’ll need an attorney for all of that, and GG will normally provide a referral if required. Most Australian Intended Parents arrange most of these matters with their attorney a few months before the birth, although the final orders are often made after the birth. Your surrogate will also require her own independent legal advice (of course, you pay for this, but it won’t cost too much).

Obtaining an Australian passport for your child whilst in the States
Whether or not you obtain an Australian passport for your child before or after you depart the US, your child will be eligible for an Australian passport if either parent (as disclosed by the birth certificate) is an Australian citizen. Your child will be granted Australian citizenship by descent (more on that later).

As for obtaining one within a few weeks after birth, this has been investigated by a few of us over time. In every case that we are aware of, a passport has not been issued until the families are back home in Australia.

Usually because it simply takes far too long to process the passport application.

Important Notes from Lee and Tony on Birth Certificates and Passports..
…….worth a read!

If one or both of the parents listed on the Certificate of Live Birth is an Australian citizen, then Australian citizenship via descent for your child is pretty much a given.
Your child does not have to surrender their US citizenship. They will be dual citizens.

Find out more via your local DIMMI office: see details on

http://www.citizenship.gov.au/ and download the Citizenship by descent application form: http://www.immi.gov.au/allforms/pdf/118.pdf

Once you have the citizenship, you can register your child for a Medicare card at the local Medicare office and apply for a passport as normal. It will save time, if the surrogate’s name is on the birth certificate, to have her sign and witness the forms needed for the Australian passport application before you leave the US. These can also be downloaded at the DIMMI website.

Every Australian we know who has a baby through surrogacy in the States has brought their baby home on a USA passport.

You need to obtain an electronic visa for your child before travel, but after you’ve received their US passport, which is available athttps://www.ecom.immi.gov.au/visas/jsp/index.jsp?visaType=VSS

Most babies have traveled on a tourist visa, which of course is only valid for up to three months. One condition of such a visa is an intention to depart Australia before the visa expires.

When completing the immigration paperwork in anticipation of your arrival, you will be asked to answer whether your child intends to stay in Australia for more than three months (the length permitted by a tourist visa). This is obviously a deliberate question.

Some have chosen to say yes, and if taken to task, would explain that their child will absolutely obtain Australian citizenship via descent within the three months anyway.
Others have answered no, and felt that they were not making a false declaration, as they would have taken the child back to the USA if the Australian citizenship had not been recognised.

There are risks with both. This is an important question you need to make once fully informed.

Get advice!

If one or both of the parents listed on the Certificate of Live Birth is an Australian citizen, then Australian citizenship via descent for your child is pretty much a given.
Your child does not have to surrender their US citizenship. They will be dual citizens.
Find out more via your local DIMMI office: see details onhttp://www.citizenship.gov.au/

And download the Citizenship by descent application form:http://www.immi.gov.au/allforms/pdf/118.pdf

Once you have the citizenship, you can register your child for a Medicare card at the local Medicare office and apply for a passport as normal.

It will save time, if the surrogate’s name is on the birth certificate, to have her sign and witness the forms needed for the Australian passport application before you leave the US. These can also be downloaded at the DIMMI website.

After you’ve obtained Australian citizenship for your child, you can then apply for an Australian passport. If one of the parents (usually the surrogate) on the birth certificate is not one of the child’s social parents, then you will need to provide evidence to the relevant authority as to why that parent cannot sign the application.
At least one Australian gay couple has done this and their evidence was accepted.

Alternatively you can have your surrogate sign the relevant applications/paperwork whilst you are in the States.

The laws have changed significantly in Australia from 01 January 2009 in relation to Medicare, the Medicare Safety Net and a range of Social Security Benefits. Same Sex couples are now treated the same as opposite sex de facto couples. You will need to visit Medicare and Family Assistance offices to register and complete relevant paper work. You will be eligible for the baby bonus (means tested)..

Call in to your local Maternal & Child Healthcare Centre before your child is born. Ask for a ‘Yellow’ Book (they’re now actually blue), which will be used by them and you to chart many things over your child’s early years, including: their immunisations; growth rates, average comparisons etc.

Take the book to the birth so any immunisations at birth will be recorded. As soon as you have your child on a Medicare Card, your Centre (or local Doctor) will forward details to the National Immunisation Register.

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