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Assisted Reproduction

Melbourne Court Recognizes Gay Parents Of A Baby Born By An Indian Surrogate

More progress in the fight for equal rights for same-sex couples pursuing parenthood as an Australian court has recognized both men as the legal parents of their baby:

The case comes as overseas surrogacy booms, with 350 babies expected to be brought to Australia in 2011, compared with 50 just two years ago.

The Herald Sun can reveal the parenting rights breakthrough hot on the heels of Nicole Kidman’s shock new surrogate baby revelation and the success of TV hit comedy Modern Family, which features a gay male couple with a baby girl.

The 20-month-old girls were born in Mumbai to a woman who carried eggs from an anonymous donor impregnated with sperm from one of the men.

The Melbourne couple went to the Family Court seeking full parental status for the non-genetic father.

“In this case, the children do not have the benefit of a mother, but they have the good fortune of having two fathers,” Justice Paul Cronin found. “As a matter of law, the word ‘parent’ tends to suggest some biological connection, but … biology does not really matter; it is all about parental responsibility.”

Lawyer Susan Buchanan, who represented the couple at the Family Court, said the ruling could pave the way for other same-sex couples to win full parenting rights.

A gay couple told 60 Minutes last year they paid $40,000 for an Indian woman to give birth to twin girls. “They’re going to grow up finding this totally normal until they see otherwise and then, you know, when they start asking questions we’ll give them the answers,” one of the men told the program.

The Family Court decision was welcomed by surrogacy advocates. “It’s a major step forward having that kind of judgment because it sets a precedent,” said Sam Everingham, of Australian Families Through Gestational Surrogacy. “Any judge would have seen that this is a modern family made in a fairly unconventional way.”

But Catholic ethicist Nicholas Tonti-Filippini said surrogacy should be discouraged because a “committee of parents” – surrogate, donors and commissioning parents – confused a child’s sense of identity. “Parents don’t have rights, they have responsibilities. The crucial thing in all of this is that the courts make decisions in the interest of the child.”

The Family Court made “parenting orders” in three international surrogacy cases last year where couples- and in one case, a single Sydney man – returned to Australia seeking citizenship for the newborns.

Now as great as this news is, I do have a major nit with the accuracy of the rest of the reporting. Later in the article, the reporter for the Herald Sun writes:

India is the most popular source of surrogate babies. Mr Everingham said more than 200 surrogate babies would be born this year to Indian women, who will charge about $25,000. About 100 babies will come from the US, where the going rate is $150,000-plus, while about 50 will come from Thailand, where the charge is up to $50,000.

Several points to mention. First, there is no way to accurately determine what country is the most popular destination for Intended Parents pursuing surrogacy. Not only is there no organization that tracks these statistics, but many couples are extremely private about the circumstances involving their babies birth. As an example, I have had many international clients who have publicly maintained that the Intended Mother delivered the baby while on vacation or on an extended stay in the United States.

Secondly, my office alone handles in excess of two dozen Australian surrogacy arrangements every year, making the claim that there will be approximately 100 babies coming from the United States extremely suspect and unreliable.

Lastly, the reporter has completely distorted the cost of surrogacy in the United States, India and Thailand. Part of the confusion might be due to sloppy writing as it is unclear whether he is comparing the costs of the surrogate or the expense for the entire process including the IVF. Perhaps the source of the reporter’s information, Sam Everingham, has jumbled them all up entirely or was misquoted. Regardless, while certainly the United States is more expensive than India, the entire process including medical, legal, psychological, agency fees and surrogate expenses will typically be less than $100,000. In India, the all inclusive agencies typically start at $35,000 and this does not include the egg donor which can increase the cost by as much $25,000. Finally, the article fails to address the numerous cases which have arisen recently around the world where the Intended Parents home country has refused to issue passports to these babies due to legal prohibitions on international surrogacy. For these unfortunate victims, the legal costs alone to gain entry back home has run into the tens of thousands of dollars.


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