Row over reimbursement: Surrogate mother Diane (not her real name). Photo: Jason South
Altruistic surrogacy is the only kind permitted in Australia but it doesn't always end with everyone happy.
In the case of Diane*, 40, she offered to help out a couple with whom she had been friends for 20 years and agreed to carry their child. But the arrangement ended with legal action, a screaming door-stop confrontation between the mother and the surrogate, a tussle in the delivery room and ugly postings on Facebook.
Surrogacy rates in Australia are low. In 2011, only 80 women offered their bodies for altruistic surrogacy, according to Michael Chapman of the University of NSW and a fertility specialist with IVF Australia. It usually involves an agreement between family members or less frequently between friends. It is illegal to pay a surrogate in Australia but the surrogate can claim medical bills and any other out-of-pocket expenses.
Diane, a mother of three who lives in south-west Melbourne, said she entered the agreement in 2010 and the first IVF cycle was in 2011.
The couple whose child she carried are god parents to her children and have power of attorney if anything happens to Diane. "That's how close we were," she said.
In 2000, her friend had a heart transplant and it was considered too risky for her to have a natural pregnancy. The couple wasn't allowed to adopt so they considered surrogacy.
"They were thinking about going overseas and I thought that's ridiculous," Diane said. "I've got a uterus I am not using.
"I didn't want them spending hundreds of thousands of dollars. When they realised I was serious about it they took up my offer."
Melbourne IVF then carried out counselling and police checks were done.
"Everyone was fine and comfortable with it," said Diane. "It's surrogacy. It's IVF. No one had sex with each other, it was just a medical procedure."
She said the intended parents promised her the world. The friend said she would move in with her if necessary.
"I thought I was going to be supported," she said. "Then the morning sickness started. I think my friend came over twice during the whole pregnancy to cook me and the kids dinner. I had a bad back and asked them to do housework for me. She got me a house cleaner but I was concerned that was a material payment [which isn't allowed within the terms of altruistic surrogacy]."
Then concerns emerged about who would look after Diane's three young children during the delivery.
"It turned into a massive fight,'' Diane said. "I said, 'I've looked after your baby for nine months, the least you can do is look after my kids for four days while I'm in hospital'. That's what caused us not to talk for four weeks of the pregnancy."
There were disputes about $400 spent on maternity clothes, out-of-pocket expenses and a pram for the baby.
The new parents took it in turns to be with Diane during the 10-hour labour at Freemasons Hospital in November.
''Her husband cut the umbilical chord and took the baby to a corner of the room," she said. "He didn't talk to me once that baby was born. I didn't even get a thank you."
An argument then ensued in the maternity room when Diane's boyfriend prepared to post on Facebook that she had successfully delivered. The couple wanted to tell their families first. Another row started about who could be in the photo with the baby, she said.
A month after the birth a row began over reimbursement of expenses of $648. "She wanted to be smart about it and said I was trying to receive material benefit from them," Diane said. "I said if you don't pay me my money I will come and get my baby and give it to someone else who deserves it. I went round to their place six days after I gave birth and her husband answered and said: 'You dont want to go in there'."
Commercial surrogacy is illegal in Australia, apart from the Northern Territory, which has no laws governing surrogacy. NSW, Queensland and the ACT have made it an offence for residents to enter into commercial surrogacy abroad and can impose penalties of jail for up to two years.
Diane believes the system of altruistic surrogacy offers little protection for the surrogate.
"That's why people are going abroad," she said. "I carried the baby, I birthed it and I handed her over. I did three rounds of IVF. I always believed that Australian surrogates shouldn't be paid. Now I think it needs to be done like a business transaction. You pay the surrogate so there's no backlash afterwards."
Diane said she had recovered her costs and some of her legal fees but said there was still outstanding fees of about $2500.
Stephen Page, one of Australia's most eminent surrogacy lawyers, is representing the couple. He said they were waiting for a court date for a judge to be satisfied it was appropriate for an order transferring parentage to be made, presuming everyone consented to that order being made.
He declined to comment on the detail of the allegations made by Diane.
"I would be hopeful in the next couple of weeks that this matter will be resolved amicably," he said.
"I do agree that there ought to be commercial surrogacy in Australia. If we reduce the demand for Australians going overseas with a highly regulated commercial surrogacy here then it will work."
* Name changed for legal reasons