I quite like lawyers. I figure if we can outsource some of the tricky bits in life to someone with more expertise than us, we can free up time and energy for more important things, including (but not limited to):
- patting cats,
- walking backwards and forwards from the fridge to see if cake has materialised,
- staring menacingly at soccer mums who park over my driveway every day at 3:20pm,
- smelling bacon,
- buying things on eBay for $1 with free shipping
So I was very ok with enlisting the help of a surrogacy lawyer (or two, as is the requirement in Australia) to guide us. This post will talk about that process and how it feels, without actually talking about our personal surrogacy Agreement 🙂
Every surrogacy adventure in Australia has to have an associated surrogacy Agreement, which is a legal document drawn up that sets out the intentions of all involved. It is then handed to Judge Judy (or whoever is on duty) when applying for parentage, which happens after a child is born as a result of the Agreement. At birth, the child legally belongs to the surrogate and her partner until parentage is obtained, despite being in the care of the intended parents.
The typical gestational surrogacy Agreement states that the surrogate intends to become preggers with the intended parent(s) embryo(s), and will hand-ball the baby to said parents at birth before they have time to realise “crap, what have we gotten ourselves in to?” and run arms-flailing in the other direction.
The typical agreement also states that the surrogate will carry said child in exchange for nothing other than a bucketload of karma the size of a thousand suns, 9 months of awkward questions from strangers and an inability to venture more than 10 minutes away from the nearest bathroom. The typical agreement also states that the intended parents will pay for all medical and surrogacy-related expenses incurred, using actual money, not chocolate coins, Woolworth’s trading cards, or a picture of a spider.
Now that sounds sensible enough, but in reality, the Australian surrogacy Agreement is an odd beast for a few reasons:
- It’s not legally enforceable – it’s an agreement, not a contract.
- The typical agreement takes things that are very trust-based, and puts them in to something almost resembling a contract.
Right, so, it’s a legal requirement, it’s a legal document, but isn’t legally enforceable. Gotcha. On some levels that’s confusing, but there are actually certain things best not put in a “contract”. Since naturally much of an agreement relates to a surrogate’s pregnancy and birth, an enforceable contract might have the potential to lessen a surrogate’s feeling of bodily autonomy, which is the last thing that should ever happen to anyone.
On the flip side though, a lack of contractual obligation has the potential to cause uncertainty for both the Intended Parents (hoping that the surrogate will relinquish the child, and sign over parentage after birth), and also for the surrogate (hoping that the Intended Parents will accept a baby born as the result of the agreement, that all expenses will be reimbursed, and that counselling and appropriate grievance processes are followed).
So in theory either party could bail out mid-adventure leaving the other half of the team in a pickle, with no ramifications apart from getting coal from Santa every year for the rest of eternity. This is where trust comes in to it. So much of altruistic surrogacy is trust-based.
I have a crazy amount of trust in our surrogate, so I felt that for a legal document to come and be all like “here are the things you unconditionally trust about each other – let’s put them in a written agreement just in case things go pear shaped” felt very pre-nup-py to me, even if it’s not an enforceable contract. Go away lawyers, leave us alone in our love bubble.
Anyway, the process did have its benefits as we were prodded to think about different scenarios not previously discussed. After a while I started to view it all as just another box to tick – suck it up and get it done. After all, the Agreement is just a requirement to demonstrate our intentions to the court. I guess a big part of me feels like I want to prove my intention through actions now and for years to come, not because of any written agreement, but because I want to out of love.
So the whole written Agreement thing just didn’t feel natural to me at all. The process of getting it done was the first thing about our surrogacy adventure I felt wasn’t really “me”. If it were me, I’d write it on a serviette in glitter glue and have a clause in there about everyone being allowed to bring their pets to work and eat chocolate before bed. This is why I’ll never be a lawyer 🙂
I’m so glad that the legal stuff is almost done and out of the way. Now we can all get back to concentrating on important things, like figuring out how to best ice a counselling-themed cake for after our appointment on Friday (pics to follow!) 😀