Surrogacy laws: Legal tug-of-war highlights flaws of current system.

By Madeleine Morris

A newborn baby has been used as a bargaining chip between its biological parents and its surrogate mother after a surrogacy arrangement in north Queensland went sour.

When the baby was born last week there was no certainty over who would take home the child, with intended parents and surrogate in a standoff about expenses claimed by the surrogate that had not been paid.

The matter has now resolved, but observers say the case highlights how Australia’s surrogacy laws can leave all parties relying on goodwill, and emphasises the need for urgent law reform.

Speaking exclusively to 7.30, Alexa (whose last name cannot be used for legal reasons) explained how she felt used after her relationship with the intended parents of the child she carried broke down during the pregnancy.

“It started out for love … with me wanting to do something for them,” Alexa said.

“And then without support, without any gratitude or any thanks, it just got worse.”

Alexa is related to the intended parents and said she did not hesitate to become their surrogate after watching years of their failed attempts to have a child.

She said things started to go wrong in the first trimester, when the fertility clinic they attended put her on a very high dosage of progesterone to help maintain the pregnancy.

The high hormones made Alexa very nauseous, and on some days unable to get out of bed.

The clinic refused to lower her dose, so after seeking a second opinion, she lowered the dose herself, without telling the clinic.

She said on several occasions in the first trimester, the intended mother would ring her “hysterically crying telling me I was having a miscarriage”.

Alexa concedes lowering the progesterone dose probably heightened the intended mother’s anxiety.

The intended parents declined to be interviewed by 7.30.

Two parties had minimal pre-surrogacy counselling

The mandatory pre-surrogacy psychological assessment had already thrown up a number of red flags, including the intended mother’s anxiety and Alexa’s previous post-natal depression.

But both intended parents and Alexa were in a hurry, so after only three hours of counselling between all of them the IVF clinic went ahead and transferred the embryo, made from the intended parents’ egg and sperm.

Alexa’s lawyer, Stephen Page, has extensive experience in surrogacy arrangements.

“I can’t say whether there wasn’t enough preparation,” he said.

“What I can say is preparation is absolutely essential with any surrogacy arrangement. Prevention is better than cure.”

“If there is going to be a surprise, it is better that the surprise be identified at the beginning and dealt with rather than turn into a very nasty surprise at the end.”

Relations did not improve even after the 12-week scan showed a healthy baby boy.

Alexa said she was devastated when the intended mother told her she was not going to prepare anything for the baby because it would be stillborn.

She said throughout the pregnancy the intended mother rarely called her and only occasionally attended ante-natal appointments, as she had promised to do.

“It was really hard because I was getting no support, I was very sick,” Alexa said.

“When we went into it, it was all the promises that ‘we’re going to be there, we’re going to support you, we’re going to help you with [my three-year-old son] Jaxon’, and all of that, and it never started.”

Alexa said she felt so alone and unhappy that at the 16-week mark she sought an abortion, but was told it was too late.

“It’s unfortunate when intended parents and birth mother fall apart; it’s just completely avoidable,” Mr Page told 7.30.

“One of the parties gets upset by something and those problems need to be nipped in the bud at that point, because the ripple keeps going and unfortunately, if it’s not managed really carefully, then we hit the waves on the rocks at the end.”

After the relationship completely broke down a standoff developed when Alexa claimed $8,300 in unpaid expenses, mostly in travel costs and legal bills.

In Australia, surrogates are not allowed to be paid for pregnancies, but are supposed to have all “reasonable expenses” paid by the intended parents.

These include health costs, travel and separate legal representation for the surrogate mother.

In a letter sent by the intended parents just weeks before the birth, they said they would only pay about two-thirds of Alexa’s expenses after she signed a parentage order to make them legally the parents of the baby.

They refused to pay $3,000 in legal fees, for Mr Page, arguing Alexa had adequate legal representation from the solicitor they had previously hired for her.

Alexa’s lawyer said the couple were effectively forcing Alexa into signing the parentage order.

“The birth mother must consent to the making of an order,” Mr Page said.

“If you hold over the money and say we’re not going to give you the money until you consent, then you are in effect engaging in a form of coercion.”

Alexa, for her part, refused to give them the baby to take home until they had paid all her claimed expenses.

When challenged by 7.30 that she was also holding the intended parents to ransom, Alexa said: “I have every right — it’s a business deal, isn’t it? It’s not a friendship.”

The dispute carried on for days after the baby was born, with, at one stage, surrogate Alexa saying neither she nor the intended parents would take the baby home if she did not receive her money.

The baby will go to another source, another agency, and it’ll the best thing for the baby,” she told 7.30 on the day it was born.

Federal legislation needed, Surrogacy Australia says

Finally, an agreement was reached four days after the baby was born, after the intended parents agreed to pay all of Alexa’s expenses immediately, and Alexa agreed to relinquish the child.

But the resolution to a ugly situation has provided little comfort to those involved, or those in the wider surrogacy community.

“It highlights that there needs to be federally-based legislation to help bring a regulatory framework across Australia,” Robert Reith, president of Surrogacy Australia, said.

“Surrogacy agreements (signed before embarking on a surrogacy arrangement) aren’t legally binding.

“There is no framework or legislation that can mediate between two parties. Both surrogate and intended parents aren’t protected.

“The surrogate is still officially the birth mother, the name that goes on the certificate.

“That is both a risk to them and the intended parents.”

Alexa said she embarked on the surrogacy with the best of intentions, and it only became about the money when the relationship completely broke down.

She still keenly feels a lack of acknowledgment and appreciation.

“It’s just sad,” she said.

“He will never know where he came from, the baby will never know that I did it for him.”

This post originally appeared on ABC News.