Gay Dads Australia

Gay Dads Australia - Surrogacy FAQ

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Chapter 1 - Surrogacy – An Introduction

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 always seek 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out of date.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).
Legal Issues

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.

Compensation

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.

Who Chooses Surrogacy

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.

The Biological Connection

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.

Emotional Issues

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.

Surrogacy for Gay Men

Surrogacy is a big growth area for gay men. There are a number of dedicated surrogacy agencies
in countries like the US, Canada and India, and quite a few Australian men are using these
services. It is also possible to find a surrogate in Australia (though problematic in terms of the
laws in this country).

There are two types - traditional and gestational. With the former the surrogate donates her own
eggs, with gestational surrogacy an egg donor is used and these are implanted in the surrogate.

The surrogacy agencies are generally involved in the screening processes, the potential matching,
the legal aspects and the co-ordination of it all. No doubt it is something that an individual could
also undertake themselves without using an agency (though it would be time intensive). Most
intended parents would generally choose to use an agency to assist and guide them, at the very
least the first time.

Think of it in the same way as women seeking a "donor", but in reverse. The child is also 100%
legally the father(s), and in the US the court papers and the birth certificate typically reflect this.
There may or may not be onward going contact between the surrogate and the child. This is
usually something that the intended fathers and the surrogate will decide.

One agency used by many Australian gay men is Growing Generations in Los Angeles, and it is
probably the largest of the West Coast based agencies (the surrogacy laws in California very
much favour the intended fathers). Their website is www.growinggenerations.com, and it is
pretty informative.

Surrogacy for Gay Men in Australia

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 in the US – An Introduction

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.

Getting Started

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

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.

The Surrogate Match

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.

The Egg Donor

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

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.

Now you are Pregnant

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.

Managing the Pregnancy

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

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.

One Last Thing.....

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.

Coming back to Australia from the India– Obtaining a AU Citizenship and an AU Passport

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.

Surrogate’s relinquishment of parental rights

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).

An Australian Passport

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.

Obtaining Australian citizenship via descent

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.

Now You Are Home

Entering Australia – Immigration

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 at
https://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!

Obtaining an Australian Passport

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.

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.

Medicare, Family Assistance, Baby Bonus - Government Payments

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)..
Immunisations

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 immunizations; growth rates, average
comparisons etc.

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