I. INTRODUCTION

2.1 The Commission’s terms of reference require it to study “surrogate mothering” arrangements, which are described as “arrangements under which a woman agrees to bear a child for another person or persons”. In the context of artificial conception, this description or definition has, in recent years, become will established, and will be used by this Commission despite the fact that it is, strictly, a misnomer.¹ Accordingly, the term “surrogate mother” is used in this paper to refer to the woman who rears the child.

2.2 Under the most commonly-reported form of surrogate mothering or surrogacy arrangement, a woman (the surrogate mother) agrees with a married couple (the commissioning couple) to become pregnant, to bear a child and to hand the child over after birth to the married couple to be brought up as theirs. A critical aspect of surrogacy arrangements is the intention of the surrogate mother to surrender the child upon birth.

2.3 Surrogate motherhood is not necessarily a procedure of artificial or technologically assisted conception. Nevertheless, techniques of artificial conception can be used. In such cases, the reproductive tissues may be derived from one or both members of the commissioning couple, or may come entirely from donors. The most commonly-reported arrangement envisages that the surrogate will become pregnant by artificial insemination (AI) with semen of the commissioning male. There is some evidence that surrogacy arrangements are entered into where conception occurs by natural sexual intercourse. It is impossible to gauge the extent of naturally-conceived pregnancies that are commissioned because women may choose not to disclose the circumstances of their pregnancy.

2.4 The reasons for the emergence of surrogacy and the various methods of conception that may be used for the purposes of surrogacy arrangements are described in this chapter. Resort to surrogacy arrangements is one means of overcoming medical problems or infertility of the commissioning couple or one of them. While the surrogacy arrangement might involve payment of money to the surrogate mother, it could also be quite altruistic, with no money passing between the parties.

2.5 There is very little information available about the incidence of surrogacy arrangements in Australia and little information is available on its practice. Much has been written about practices in the United States of America, where the demand establishment organise surrogacy agreements ancillary services. Accordingly, much of for surrogate mothers has resulted in the of agencies, brokers and intermediaries who and provide ancillary services. Accordingly, much of the information gathered by the Commission on surrogacy arrangements has come from the United States. In that country, there are many reported variables in surrogacy arrangements. The agreement between the surrogate mother and the commissioning couple (or person) might be arranged by a commercial² or voluntary intermediary or by the parties themselves.³ The parties might meet or they might remain unknown to each other.⁴ Their arrangement might be formal or informal.⁵ There might be payment of only medical and related expenses,⁶ or such payment plus a fee,⁷ or arrangement may be gratuitous.⁸ The method of conception will depend upon a number of factors including the parties’ attitude to sexual intercourse between the commissioning husband and the surrogate, and the availability of artificial conception.⁹

II. THE INCIDENCE OF SURROGACY IN AUSTRALIA

2.6 The Commission has not been able to obtain accurate information about the incidence of surrogacy arrangements in Australia. At the present time no statistics on the incidence of such arrangements are compiled in this country, either at a federal or state level. Extensive media publicity given to certain births in recent years tends to confirm that surrogacy arrangements have been made and performed in New South Wales and other states, but no official procedures exist for recording births that arise from such arrangements.¹⁰

2.7 The Commission has been assisted in its inquiries by information provided by a specialist in reproductive health practising in New South Wales, and by couples who have resorted to and who wish to resort to surrogacy as a means of starting a family.¹¹ The specialist has frequently been consulted couples interested in making surrogate motherhood arrangements. In recent years the number of consultations has been increasing and for some time has exceeded two a month, although not all couples take the matter beyond a first telephone discussion or inquiry. This information does not provide a basis for estimating the incidence of surrogacy New South Wales.

Ill. REASONS FOR SEEKING SURROGACY

2.8 There is little published data available on surrogacy and the reasons prompting a couple to seek to acquire a child in this way. However, based on published surrogacy cases and what the Commission knows from informal sources about couples seeking surrogacy, it may be concluded that the majority do so because some medical problem precludes them from normal pregnancy. Some of the possible reasons for seeking a surrogacy arrangement appear below.

A. Infertility

2.9 Infertility is defined as the inability to conceive after a year of unprotected intercourse and occurs in 10%-15% of all couples in Australia. It has been estimated that in New South Wales alone, between 30,000 and 50,000 couples of reproductive age are infertile.¹² There are four known major causes of infertility: tubal disease, defects in the sperm, ovulatory failure and endometriosis. For a small but important proportion of infertile couples, the infertility is unexplained or “idiopathic”.

2.10 The majority of infertile couples will be able to achieve pregnancy either with conventional medical or surgical treatment or with one of the new artificial conception techniques such as AID, IVF or GIFT. Surrogacy may be viewed as an alternative to a couple’s infertility if:

• treatment fails;
• treatment is unacceptable to the couple; or
• the cause of infertility is not amenable to treatment, for example, uterine disease or uterine absence.

B. Medical Conditions in the Woman

2.11 A number of medical conditions, while not affecting the fertility of the woman, may make it impossible for her to carry a pregnancy to viability (for example, recurrent abortion or recurrent premature labour) or dangerous to her life to become pregnant (for example, severe heart disease, unstable diabetes, severe kidney disease, severe hypertension or respiratory disease).

C. Genetic Diseases

2.12 There are a number of types of genetic diseases in which there is a significant risk of an abnormal gene carried on one of the maternal chromosomes being passed on to the foetus. In autosomal dominant conditions, the abnormal gene is carried on one of the maternal non-sex chromosomes and any child of hers has a 50% chance of being affected, for example, by Huntington’s chorea and achondroplasia. In most of these conditions, the early pregnancy cannot be screened for the presence of the abnormal gene affected foetuses is not an option. The only methods of avoiding this risk would be surrogacy or IVF using a donor egg.

2.13 X-linked conditions, for example haemophilia, occur when the abnormal gene is carried on the X chromosome and any male offspring would carry a 50% chance of being affected. Possible treatment options would include determining the sex of the pregnancy and offering a termination if the foetus was male, IVF with a donor egg, or surrogacy.

2.14 Autosomal recessive conditions such as thalassaemia cause problems for the foetus when both partners carry the abnormal gene. Under these circumstances a child has a 25% chance of being affected and a 50% chance of carrying the abnormal gene. For a number of autosomal recessive conditions screening is possible in early pregnancy and an abortion can be offered to couples with an affected foetus. Other treatment options would include AID, IVF with a donor egg, or surrogacy.

D. Social Reasons

2.15 In their important work on artificial conception, Professor Peter Singer and Deane Wells have outlined the range of reasons which lie behind the surrogacy choice. As they see it,

...there is a gradual continuum stretching from those women who physically cannot have a child without surrogacy; through those who can have a child in the normal manner but only at some risk to their lives; to those who may have more minor health grounds for avoiding pregnancy (perhaps it will aggravate their varicose veins); and to those who have serious professional considerations against becoming pregnant; and finally to those who have only those reasons against pregnancy that every woman could have, if she were inclined to give weight.¹³

2.16 Apart from medical indications, there are reasons of lifestyle or convenience which might prompt a woman to consider surrogacy, rather than to carry a child herself. Singer and Wells list among such reasons considerations of the impact of a pregnancy on a career, aesthetic considerations and the wish to avoid the prospect of morning sickness, pregnancy and the pain of childbirth.¹⁴

IV. THE SURROGATE MOTHER

2.17 Very little information is available concerning the woman who offer to become surrogate mothers and to carry a child for someone else. It may be important to distinguish cases where surrogacy arrangements involve commercial considerations, with a fee payable to the surrogate mother, from those arrangements which do not contemplate such a payment. The latter arrangements are often referred to in the literature on surrogacy as “altruistic” surrogate motherhood.

2.18 Although it is simply not possible to quantify, the Commission understands that at times arrangements are made within a family for a woman to have a child for her infertile sister or sister-in-law. The Commission further understands that these family arrangements are unlikely to involve any payment to the surrogate mother (other, perhaps, than the reimbursement of medical expenses). Apparently such arrangements are not new in our society. They have been known to members of the medical profession for some time. It is only relatively recently that they have been spoken of as surrogate motherhood arrangements. Since, in these arrangements, the woman may become pregnant through natural sexual intercourse, information is unlikely to be readily available about these arrangements.¹⁵ A specialist practising in New South Wales who has had contact with women offering to become surrogate mothers has told the Commission that there do not appear to be characteristics common to potential surrogate mothers. Some are unmarried young women who have not previously borne children. Others are married women who have an established family of their own.

2.19 Altruistic surrogate motherhood has generally been regarded as involving somewhat different considerations from arrangements made on a commercial basis. In Chapter 4, where the Commission outlines the official responses to motherhood to date, it can be seen that, even when official Inquiries have proposed that surrogacy arrangements be prohibited, they have implicitly allowed altruistic surrogacy to continue.¹⁶

V. METHODS OF CONCEPTION

2.20 The means by which a child can he conceived in a surrogacy arrangement are as various as the techniques available for natural and artificial reproduction. The child may be the genetic child of the commissioning couple or have no genetic link to them at all.

2.21 In the most commonly reported method used in surrogacy arrangements, the surrogate mother becomes pregnant as a result of artificial insemination using the semen of the commissioning husband.¹⁷ The pregnancy may also be sexual intercourse between the surrogate mother and the commissioning husband. This method might be chosen on the basis of preference,¹⁸ or for other reasons. For example, the parties might have been unable to obtain acceptable medically-supervised AID due to unavailability of AID facilities or to the unwillingness of a local doctor to facilitate artificial insemination for surrogacy purposes.¹⁹ Where the surrogate mother is a married woman, natural insemination has a particular advantage for a commissioning couple over artificial insemination techniques because it would statutory presumption that the husband is the father of the resulting child. The surrogate mother’s husband would be conclusively presumed to be the father if he consented to the use of donor sperm to achieve his wife’s pregnancy by artificial means, whether AID or IVF.²⁰

2.22 IVF and ET (in vitro fertilization followed by embryo transfer) may also be used to achieve a pregnancy. Under this method the ovum of the commissioning wife would be surgically removed and fertilized in vitro and later transferred to the uterus of the surrogate mother.²¹ The IVF technique requires a high degree of medical and scientific expertise.²² There have been two reported cases in Australia in which IVF has been used for the purpose of surrogate motherhood.²³

2.23 Another possible method of achieving a pregnancy is uterine flushing which is also called “lavage” and “surrogate embryo transfer”. The procedure involves fertilization by artificial insemination, followed by the flushing of the resulting conceptus from the uterus. The conceptus is then transferred to the uterus of another woman who will bear the child. The procedure could be used in two directions. It might assist a commissioning wife to transfer the conceptus to her own uterus. On the other hand it might be used by a commissioning wife who is capable of conception but who cannot continue a pregnancy, so that the conceptus would be fertilized in her uterus and then be placed in the reproductive system of a woman who would surrender the child to her upon birth. The term “surrogate” in this context may bear a different meaning from its meaning as used elsewhere in this Paper when considered in relation to a woman who donates the conceptus but does not participate in the subsequent gestation.²⁴

2.24 There could be circumstances in which gametes donated by persons other than the commissioning couple are used. It might be medically desirable or necessary, in the case of IVF, to use an ovum donated by a third woman, for example, when it is difficult or impossible to retrieve ova from the commissioning wife. Similarly, it might be necessary to obtain semen from a donor other than the commissioning husband, for example, if his sperm is defective.²⁵

2.25 As indicated above , the important issue which arises from consideration of the different types of conception is the effect they have on the relationships between the parties involved. Depending upon the gametes used, and the legal presumptions applied to their use, the child may be regarded as the child of the surrogate mother and her husband, the child of the commissioning couple, the child of the surrogate mother and the commissioning husband or even as the child of the surrogate without an identifiable father. The Commission seeks guidance on whether any principles of general application should be developed to determine parentage.

2.26 There would appear to be two equally strongly held views on the matter. On the one hand, it is said that it is desirable that the child takes its parentage from the commissioning couple. Thus, in the same way as this Commission assigns parentage in cases of IVF birth, their would be a legal presumption that no matter the source of the gametes, the parties for whom the child was conceived would be the parents. Neither the surrogate mother nor the donor of semen would be assigned parentage.

2.27 The other alternative is to reject the artificiality inherent in legal presumptions and assign parentage so as to recognise those who provided the gametes. In the most commonly reported type of surrogacy arrangement (that between a commissioning couple and a surrogate mother, with semen provided by the husband and ovum by the surrogate) this would result in the surrogate mother and commissioning father being recognised as the parents. The commissioning wife’s interests would be protected by vesting custody of the child in her and her husband. It is said that acceptance of this alternative accords better with current thinking in adoption law.

2.28 The matter is considered at some length by the Asche Committee in its 1985 report on reproductive technology.²⁶ The Committee points out that practice in the adoption field is now turning away from the use of legal presumptions to create relationships and towards an approach in which parental rights and obligations are assigned without negating the genetic relationships. Thus, the Committee refers to the United States Uniform Parentage Act in which “the husband is treated in law as if he were the natural father of a child thereby conceived”.²⁷ The effect of this is to extinguish all the rights and obligations of the natural parents and assign them to the people who are to have the care of the child. What the United States Act does not do is to create a legal presumption that the commissioning husband and his wife are the natural parents of the child.

VI. AGENCIES, BROKERS AND INTERMEDIARIES

A. United States of America

2.29 In the United States intermediaries involved in surrogacy arrangements have established programs designed to match prospective surrogate mothers and commissioning couples, and to provide support services during pregnancy and until the couple receive the child.²⁸ The intermediaries might also monitor the surrogate mother’s compliance with the contract. Between 1979 and 1983, sixteen agencies were established in twelve states across the country²⁹ and apparently some of them cater to an international clientele as well.³⁰

2.30 There is a good deal of information available about the stages involved in making surrogacy arrangements in the United States.³¹ The criteria for accepting the commissioning couple (or commissioning person) vary between organisations. Childless couples are, however, preferred.³² The commissioning couple (or person) choose from a list of potential surrogate mothers on the basis of medical, psychiatric, educational and professional qualities.³³ The couple (or person) and the potential surrogate might meet before conception occurs.³⁴ To be accepted as surrogate mothers, women must satisfy a number of criteria, which may include consideration of marriage status,³⁵ employment status,³⁶ medical³⁷ and psychiatric history, education and professional training,³⁸ and certain beliefs.³⁹ After a suitable potential surrogate mother has been found, a formal written agreement is entered into, specifying the parties’ obligations. The obligations of the commissioning couple usually involve the payment of all expenses arising from the conception and pregnancy (such as medical and hospital expenses, travel and insurance costs), and a fee to the surrogate mother. The surrogate mother is required to bear the child, to submit to directions of the commissioning husband’s doctor, to refrain from certain activities, to refrain from forming a mother-child bond, and to terminate her parental rights upon birth.⁴⁰

2.31 The surrogate mother’s personal freedom and autonomy can be significantly curtailed during the performance of the agreement. One woman who applied to become a surrogate mother in the United States wrote of her experiences, including the following medical restrictions which applied:

The surrogate must keep all scheduled administrative, medical, psychological, counselling or legal appointments arranged for her. These may be set by the physician in accordance with the schedule and, therefore, may not always be convenient for the surrogate mother.

The surrogate mother must use the services (medical, psychological, etc) which are chosen and provided by the program. The surrogate must submit to all standard medical procedures and any additional medical precautions and/or instructions outlined by the treating physician.

The surrogate must furnish medical and psychological records to the company and the parents.⁴¹

2.32 Agencies were established in the United Kingdom prior to the Surrogacy Arrangements Act 1985 which prohibited their further operation.⁴²

C. Australia

2.33 While the Commission understands that individual medical practitioners who are approached for assistance may be prepared to offer some guidance, we are unaware of the existence of surrogacy agencies operating in the manner of intermediaries in the United States. Nevertheless, in the absence of prohibition, and given the increasing interest in surrogacy, it is likely that such brokers will emerge in Australia and will offer to introduce couples to potential surrogate mothers. In March 1988 it was reported that a couple had set aside the sum of $110,000 to hire a Sydney private investigator to find a surrogate mother who was willing to carry their child. The fee was said to cover investigation costs, and the expenses of the surrogate mother.⁴³ Currently, instead of an agent or broker, it is likely that a doctor or a family planning specialist will be approached by infertile couples seeking the services of a surrogate mother. Such limited information as the Commission has been able to glean comes from doctors in family planning clinics who have been approached by people inquiring about the possibility of making surrogate motherhood arrangements.

VII. FEES FOR SURROGACY ARRANGEMENTS

2.34 The Commission’s information on this subject relates to a large extent to the United States where the costs associated with surrogacy arrangements vary from case to case. As an example, earlier provided this decade the average fee for the service provided by The Surrogate Parent Foundation, Inc., of Hollywood, California was US$25,000.⁴⁴ Press reports relating to surrogacy agreements in Australia, New Zealand and the United States, suggest that a typical surrogate mother is $10,000.⁴⁵ The legislative proposals in the United States use this amount as the benchmark: in New Jersey the maximum proposed payment to the surrogate is $10,000, while in Connecticut and Hawaii there is a proposed minimum fee of $10,000.⁴⁶ Surrogacy of this kind is obviously not within the means of all income groups. On the other hand, there may be cases in which no agent is involved or in which the surrogate mother receives no remuneration, for example where the surrogate and the social mother are related or are friends.⁴⁷ A privately arranged surrogacy which came before the High Court in the United Kingdom in 1987 involved payment of UK10,000 pounds to the surrogate mother. The Court was informed that this sum represented her “loss of earnings, expenses in connection with the pregnancy and emotional and physical factors”.⁴⁸

1. The term surrogate refers to a person who takes the place of another, a substitute. The expected meaning of surrogate mother might be a woman who performs the childrearing role for another woman. In the context of surrogacy arrangements, however, the surrogate mother performs the childbearing role. The social mother then assumes the childrearing role. See Bernard M Dickens “Sperm, Ovum and Embryo Transplantation and Motherhood” (1985, November) Transplantation/Implantation Today at 44.

2. As to commercial intermediaries, compare the programmes offered in the USA by such agencies as Surrogate Parenting Associates, Inc, in Louisville, Kentucky; Surrogate Family Services, Inc, in Dearborn, Michigan: John W Phillips and Susan D Phillips “In Defence of Surrogate Parenting: A Critical Analysis of the Recent Kentucky Experience” (1980-81) 69 Kentucky Law Journal 877 at 881-884. See also Infertility Center of New York, New York City, “Alternatives for Childless Couples” (brochure specifying the programme and procedure offered at that clinic).

3. The parties might be known to each other, in which case they make their own arrangements. Alternatively, the potential surrogate mother might have responded to an advertisement or newspaper article John Stubbs “The surrogate mother who gave birth to a couple’s dream” The Northern Star 14 May 1983 at 26.

4. Compare the procedure of Surrogate Parenting Associates, Inc and Surrogate Family Services, Inc, John W Phillips and Susan D Phillips, note 2 at 883-884.

5. Although in the USA both Surrogate Parenting Associates, Inc, and Surrogate Family Services, Inc, have written agreements, the latter organisation refers to them as a “Statement of Understanding”, id at 882. For a description of the terms of a surrogacy agreement, see Katie Marie Brophy “A Surrogate Mother Contract to Bear a Child” (1981-82) 20 Journal of Family Law 263 at 264, 266-291 in particular.

6. At Surrogate Family Services, Inc, the surrogate mother receives only medical expenses, a policy based on the decision of the Circuit Court for the County of Wayne, Michigan, Unites States, in Doe v Kelley, Civ. No 78-815 531 CZ (filed 1978), that contracts to pay surrogate mothers are unenforceable as against public policy: John W Phillips and Susan D Phillips, note 2 at 883, 884 fn 47.

7. At Surrogate Parenting Associates, Inc, in Kentucky, United States, the surrogate mother is to be paid a fee: id at 883.

8. For example, note the case history described in Noel P Keane and Dennis L Breo The Surrogate Mother (1981) at ch 3.

9. The attitude of local doctors may preclude the parties having access to artificial conception: see for example, the press report in note 3. Surrogacy arrangements may occur by intention or default. Surrogacy arrangements occur by default when there is an inadvertent failure of the lavage procedure in the case of ovum donation by means of in vitro fertilization and lavage: Ontario Law Reform Commission Report on Human Artificial Reproduction and Related Matters (Vol 11, 1985) at 218.

10. Press reports suggest that children have been born in Australia consequent to surrogacy arrangements. The following table summarises those newspaper reports for the period 1983-88 available to the Commission concerning births following surrogacy arrangements. It does not purport to be an exhaustive analysis of press coverage of the subject.

Residence of Surrogate Mother	Residence of Commissioning Couple	Procedure Used for Procreation	Date of Birth or when still In Utero
1. SA	N/A	AI	1983 - in utero 1
2. NSW	NSW	NID	1983 - birth 2
3. VIC	N/A	N/A	1981 - birth 3
4. NSW	NSW	AI	1984 - birth 4
5. VIC	ACT	AI	1985 - in utero 5
6. VIC	N/A	AI	1983 - birth 6
7. VIC	NSW	AI	1984 - birth 7
8. VIC	WA	IVF	1988 - birth 8
9. VIC	WA	IVF	1988 - in utero 9

Reports

1. The Australian; 2 May 1983.

2. The Northern Star; 14 May 1983.

3. Sunday Press; 3 June 1984.

4. The Sydney Morning Herald; 1 August 1984.

5. The Sun (Sydney); 21 February 1985.

6. The Advertiser; 21 February 1985.

7. The Advertiser; 21 February 1985.

8. The Sydney Morning Herald; 9 June 1988.

9. The Australian; 13 June 1988.

12. IVF Working Paper Group of New South Wales Department of Health In Vitro Fertilization in New South Wales-Policy Guidelines (December 1984) at 10.

13. P Singer and D Wells The Reproduction Revolution: New Ways of Making Babies (1984) at 113.

14. Ibid.

15. For examples of altruistic surrogate motherhood, see Singer and Wells, note 13 at 124.

16. The Surrogate Parenthood Bill 1988, currently before the Queensland Parliament, would, however, prohibit such informal arrangements as well as those made on a commercial basis.

17. In the most commonly reported form of surrogate motherhood arrangement, the surrogate mother makes her agreement with a married couple. The expressions “commissioning couple”, “commissioning husband” and “commissioning wife” refer respectively to that couple and to the male and female partners of that couple. See also Bernard M Dickens “Surrogate Motherhood, Legal and Legislative Issues” in Aubrey Milunsky and George Annas (ed) Genetics and the Law Ill (1985) 183 at 184.

18. The case Re an Adoption Application (Surrogacy) [1987] 2 AII ER 826 concerned a surrogacy arrangement relying on this method.

19. John Stubbs “The surrogate mother who gave birth to a couple’s dream” The Northern Star 14 May 1983 at 26.

20. See Chapter 3, paras 3.7-3.8.

21. For a description of the procedures of IVF and ET see this Commission’s Discussion Paper In Vitro Fertilization (DP 15, NSW Govt Printer, 1987) Chapters 2 and 8 (paras 8.4-8.9). See also Bernard M Dickens, note 17 at 184.

22. Ibid. See also P Singer and D Wells Making Babies (1985) at 97; Anne Taylor Fleming “New Frontiers in Conception” The New York Times Magazine 20 July 1980, 14 at 17.

23. “Doctors call for IVF law to prevent baby trade” Weekend Australian 11-12 June 1988.

24. The National Health and Medical Research Council has ruled that this Procedure may not be ethically conducted in Australia in its current state of development. The Commission found no evidence that it is practised in Australia. See National Health and Medical Research Council Embryo Donation by Uterine Flushing Medical Research Ethics Committee Interim Report on Ethical Considerations (May 1985) at 1, 2 and 6. See also Bernard M Dickens “Enforcement of Surrogate Motherhood Agreements” (1987) 4(2) Transplantation/Implantation Today 17.

25. A table of many of the options available for conception in a surrogacy arrangement appears in Bernard M Dickens, note 17 at 186; see also Chalmers Report at 77.

26. Family Law Council Creating Children: A Uniform Approach to the Law and Practice of Reproductive Technology in Australia (1985) at para 6.2.

27. Id at para 6.2.4.

28. Four of the oldest agencies are Surrogate Parenting Associates, Inc, of Louisville, Kentucky; Surrogate Family Services, Inc, of Dearborn, Michigan; The Infertility Center of New York, New York; and Surrogate Parent Foundation, Inc, of Hollywood, California: John W Phillips and Susan D Phillips, note 2 at 881,833; Infertility Center of New York Alternatives for Childless Couples (brochure); Karen Marle Sly “Baby sitting consideration: Surrogate Mother’s Right to ‘Rent Her Womb’ For a Fee” (1982-83) 18 Gonzaga Law Review 539 at 539 fn 2.

29. Gena Corea The Mother Machine (1985) ch 11 at 214; John W Phillips and Susan D Phillips, note 2 at 881.

30. For example, one agency in the United States, Reproductive Freedom International, arranged for two British women to be surrogate mothers for two British couples: The Sydney Morning Herald 18 June 1986 at 23. The Surrogacy Arrangements Act 1985 (UK), which prohibits the operation of such agencies, was presented to Parliament by the British Government in response to the adverse publicity provoked by the “Baby Cotton” case. “[The] surrogate mother, Kim Cotton, was said to have contracted for a fee the service that she had performed, that the whole transaction had been arranged through and orchestrated by a commercial agency whose base was in the United States, and that these facts had become public knowledge, partly through her own volition”: Dereck Morgan “Who To Be or Not To Be: The Surrogacy Story” (1986) 49 Modern Law Review 358 at 363. Surrogate Parent Foundation Inc, of Hollywood, California represented three couples from Australia for whom American surrogates were hired in 1985: Katrina Lee, interview with William Handel of Surrogate Parent Foundation Inc. on the “Afternoon Program” screened on 9 May 1985 on Channel Ten (Sydney).

31. At the Infertility Center of New York, the sequence of events is as follows:

• First inquiry by letter or telephone.
• First visit to the Center, meeting with administrator and review of surrogate files.
• Registration (signing of contract) with the Center and payment of the agency fee.
• Selection of surrogate.
• Optional meeting with surrogate.
• Surrogate’s physical examination.
• Meeting with legal representative and signing contract with surrogate.
• Medical arrangements for artificial insemination of surrogate carried out by the Center.
• Center’s personnel keep in touch with surrogate and her physicians during pregnancy and report to couple (or couple has the option of maintaining direct contact with the surrogate).
• Birth of baby.
• Home caring.
• Legal adoption by the wife.

33. At Surrogate Parenting Associates, Inc, only childless couples are accepted, while Noel P Keane (an attorney involved with Surrogate Family Services, Inc, and the Infertility Centre of New York) has accepted single men: see John W Phillips & Susan D Phillips, note 2 at 881 and Gena Corea, note 29 at 216.

33. John W Phillips and Susan D Phillips, note 2 at 881-882.

34. Id at 884, however Surrogate Parenting Associates, Inc, does not encourage the parties meeting: Id at 883.

35. Dr Levin of Surrogate Parenting Associates Inc. selects married women, because they are regarded as more stable emotionally and they are more likely to relinquish their children: Id at 882 fn 31.

36. Mr Handel of Surrogate Parent Foundation Inc. chooses employed women: Katrina Lee , interview with Mr William Handel on the “Afternoon Program” screened on 9 May 1985 on Channel Ten (Sydney).

37. For example, a history of successful childbirth: Ibid.

38. John W Phillips and Susan D Phillips, note 2 at 882.

39. For example , preparedness to surrender the child, and attitude to abortion: interview between Katrina Lee and Mr William Handel, note 36.

40. Karen Marie Sly, note 28 at 544.

41. Susan Ince “ Inside the Surrogate Industry” in Rita Arditti , Renate Duelli Klein and Shelley Minder (ed) Test Tube Women, What Future for Motherhood? (1984) 99 at 105-106.

42. For example, the Surrogate Parenting Centre of Great Britain: Alison Leigh-Jones “Surrogate mum Mary Stewart: ‘I’ll do it again’” Woman’s Day 13 May 1985 at 37.

43. “Couple outlay $100,000 to buy a baby”, The Daily Telegraph 30 March 1988 at 3.

44. This amount covered the medical costs, and fees payable to the surrogate mother, lawyers and psychologists. It also covered the premium for life insurance, and miscellaneous costs incurred by the Foundation such as advertising, court fees and promotion. The fee actually payable to the surrogate mother was $10,000. Karen Marie Sly, note 28 at 542-43.

45. John W Phillips and Susan D Phillips, note 2 at 883, fn 39. The minimum fee of $10,000 appears to be uniform in other countries besides the USA. This fee has been quoted in Australia (“Mother-to-be for $10,000”, The Canberra Times 2 July 1987; Peter Blunden “In-vitro groups won’t back woman’s plan to bear baby for $10,000” The Australian 22 June 1982), England (David Fletcher “Surrogate mothers take on the law” The Sydney Morning Herald 18 June 1986), and New Zealand “Womb to rent for $10,000” Daily Telegraph 30 January 1985).

46. Avi Katz “Surrogate Motherhood and the Baby Selling Laws” (1986) 20 Columbia Journal of Law and Social Problems 1 at 47

47. “Sisters’ surrogate plan for test-tube baby frustrated” The Age 27 May 1986.

48. Re an Adoption Application (Surrogacy) [1987] 2 AII ER 826 at 828.