When surrogacy goes wrong.
The case of Lamb and Anor & Shaw [2017] FamCA 769 is a powerful illustration of what can happen when a surrogacy arrangement breaks down and of the limited legal protections available to intended parents under current Australian law.
The intended parents had endured a long and difficult path to parenthood. During preparations for IVF, the intended mother was diagnosed with breast cancer. Before commencing treatment, she was able to harvest just four eggs, which were fertilised by the intended father, producing only one viable embryo. That embryo was frozen. After her cancer treatment was successfully concluded, it became clear that surrogacy was the only realistic option. The intended mother's third cousin agreed to act as the surrogate, a formal surrogacy agreement was entered into under the Surrogacy Act 2010 (Qld), and the single embryo carrying the genetic material of both intended parents was implanted. It resulted in a successful pregnancy.
Following this the relationship between the parties deteriorated rapidly. The surrogate threatened an abortion, demanded financial payments beyond what had been agreed, and through her solicitor issued correspondence that implicitly threatened she would neither hand over the child nor consent to a parentage order. After the birth, the surrogate allowed the intended parents only a brief period with their newborn son before requesting his return and then refusing to hand him over. She gave a disparaging media interview, continued to demand money, and ultimately raised the suggestion that the child may not even be genetically related to the intended parents.
The intended parents commenced litigation in the Family Court two days after their son's birth. Justice Tree ultimately made orders granting them sole parental responsibility, for the child to live with the genetic parents, and for no time with the birth mother unless the genetic parents agreed.
The case exposes a fundamental vulnerability in Australian surrogacy law. Under the Surrogacy Act 2010 (Qld) — and equivalent legislation in other states and territories — there is no legal obligation on a birth parent to hand over a child born of a surrogacy arrangement. Surrogacy agreements are not enforceable contracts. When a surrogate refuses to relinquish the child, the only recourse for intended parents is to commence proceedings in the family courts, where the matter will be determined on the basis of the child's best interests — not the terms of the agreement. For intended parents who have invested years of hope, medical treatment, and emotional energy into bringing a child into the world, that uncertainty can be devastating.
It underscores the critical importance of obtaining expert legal advice before entering into any surrogacy arrangement, and of understanding that the law, as it currently stands, may not protect you in the way you expect. If you need some advice, contact Monica at KHQ Lawyers today.