Adopting our son – the final step

by

I know it has been a while between posts. My intention, however, was to write about our journey to parenthood via surrogacy, not about parenthood itself. This is my excuse for my blogging hiatus and is also why this will be my last post.

Over the past 7 months, Don and I have been stumbling along like most first-time parents, delighting in seeing our baby grow and rising to the daily challenges that that presents. But just over a month ago we did something which most new parents don’t do. We adopted our son.

Under the Surrogacy Act (Qld), the final step in a surrogacy arrangement is the adoption of the child by the ‘intended parents’. That’s us. Caitlin and Jamie are the ‘birth parents’ and are listed on John’s birth certificate as such; a fact which many people find surprising. Although John is already well and truly part of our family and his birth certificate details are not a concern to me, the adoption will make life easier for us all in the long run. Having recently navigated the passport application process for a child born through a surrogacy arrangement, I am convinced of the benefits of this last formality!

To complete the adoption, we applied to the Childrens Court for a ‘Parentage Order’. Our lawyer prepared a considerable dossier to support our case. It included affidavits from our doctor, lawyers, psychologists, and one for each of us – Caitlin, Jamie, Don and I. There were also submissions, an outline of argument and a draft order. The application and supporting documents set out how we had complied with the law, for example that we hadn’t coerced Caitlin to carry our baby for us, and we submitted that it was in John’s best inerests to remain in our care.

Don and I attended the court with our lawyer for what was a fairly uneventful and very brief hearing. John sat on my lap and listened intently to our lawyer while she went through the criteria in the Surrogacy Act and how we had satisfied them. The judge noted how pleased he was to be considering such a matter (presumably in contrast to his usual business of family separations and custody battles) and as he granted our application, he wished us a nice life together.

Unfortunately we weren’t all able to be at the court to receive the judge’s well wishes. With work and family commitments, limited court calendar availability, and time ticking on (the law required us to adopt John within 6 months of birth), we had to get the job done without Jamie and Caitlin being there. And I had to let my vision of us all being together for John’s adoption go. Instead, we celebrated with Jamie and Caitlin and our families just last weekend. It was a wonderful occasion and my heart is warmed at the thought of the many more special times we will have together over the course of John’s life.

Now that the adoption is complete and with our ‘parentage order’ in hand, the final step is to apply to the ‘Births, Deaths, and Marriages’ office to change John’s birth certificate details. His original certificate, naming Caitlin as his birth mother and Jamie as his birth father, will forever remain on file. I think this is a good thing as it’s a formal record of the tremendous favour bestowed upon us. Of course it should never be erased. As John gets older and is able to understand, we will tell him how he came to be. We have books at the ready – ‘The Kind Koala’ and ‘The Kangaroo Pouch’. We will also make our own book with photos and ultrasound pictures – a next on my to-do list! – to help our little boy understand how much love, determination, and goodwill was behind his creation.

Life has progressed quickly since the time of John’s birth 7 months ago – both for our family and also for Caitlin and Jamie and their two children. When I think back to the time when all we had was the hope that someone would help us, and Caitlin offered to be that someone, it really does seem like a dream. A remarkable dream I have to say! John is living proof of the wonderful kindness possible in this world and now I have a new hope; a hope that the world is kind to John and that he is kind to others.

*********************************************************************************************

So this marks the end of my blogging activities. For now, at least. Thank you for your reading time. I hope you’ve enjoyed and/or learnt something from my shared story.

The birth day

by

Well. We are parents. And what a wonderful thing that is to be able to write.

The birth of our son on 12 December was as momentous, moving and joyous as we anticipated it would be. Perhaps even more so given all that had passed and the fact that others were involved, giving Don and I the greatest gift possible.

Like most expectant parents, Don and I were anxious about the safe arrival of our baby. We also had the additional concern of Caitlin’s wellbeing, and as she was labouring and undergoing various medical interventions to encourage our son into the world, our sense of responsibility for her was at an all time high.

Once it became clear that both our baby and Caitlin were going to be okay, my anxiety gave way to sheer and unbridled joy.

There were tears. Of course! And I will forever treasure the memory of holding up our just-born son (who was delivered into my arms) looking through my tears at Caitlin, who also had tears in her eyes and the most wonderful, beautiful, generous smile.

Our midwife contributed significantly to our positive experience in the birthing suite and beyond. She took on board our collective wish to involve Don and I to the greatest extent possible and also took on the hospital bureaucrats to ensure I was able to stay in the hospital with our newborn and Caitlin. I am a big supporter of the public health system in Australia, particularly since the time of my illness and experiences as an inpatient in both public and private hospitals, and this most-recent experience has cemented my position. Although some maternity ward staff seemed to just tolerate rather than welcome my presence (as expected, surrogacy is not well understood by all), we were very satisfied with the care and services provided.

Caitlin and I ended up spending two nights in hospital as Caitlin needed time to recover from the birth. Our son, John Andrew, named after his grandfathers, was a surprisingly large 4.8 kgs or 10 pounds 10 ounces. Although Caitlin’s own children were a similarly healthy size, we were all expecting a smaller sized baby as Don and I are both smaller in stature than Caitlin and Jamie. I have been told there is a correlation between maternal birth weight and offspring birth weight, but in our experience nurture (Caitlin’s nourishing womb) rather than nature had a greater influence.

In the week following John’s birth, we spent a lot of time with Caitlin and her family, sharing many precious moments and cups of tea. We recognised the importance of this time for all of us. Caitlin told me that many people commented toward the end of her pregnancy on how ‘hard’ it was going to be for her after the birth. Of course it was going to be difficult to part ways – particularly as we live so far apart from each other – but Caitlin didn’t want to dwell on this. From the outset, Caitlin has maintained a positive focus and ‘textbook’ mindset about her role as a surrogate, including, for example, that she would be giving a baby ‘back’ not ‘away’. Caitlin’s wonderful outlook is best illustrated by this statement she shared with family and friends one day after our son was born:

Yesterday I gave birth to John Andrew, who I carried for 9 months so he could arrive safely into the arms of his loving folks, Don and Andrea. He is just gorgeous. Aside from having my own two special little people, it is truly the most incredible experience of my life and has been a privilege. Life asks big things of us sometimes, and they are worth saying yes to.

Our son is now four weeks old and not a day goes by without Don and I appreciating the gift of parenthood. Even through the fog of sleep deprivation! Don has now returned to work and I am settling into my new role as a stay-at-home mum. However we are not yet like ‘normal’ parents. Under Queensland’s surrogacy laws Caitlin and Jamie are our son’s birth parents – their names will be on his birth certificate – and in a few months time we must apply to the court for a parentage order to ‘adopt’ him.

Our application to the court must be filed between one and six months from our son’s birth and include supporting affidavits (from Don and I, Caitlin and Jamie, our lawyers and counsellors), and counselling reports. My understanding is that the court will consider whether we have taken all steps prescribed by the law and also whether it is in John’s best interests to now stay with Don and I.

While we are quietly confident that the court will approve our application for a parentage order, I know I will feel a sense of relief once we’ve had our day in court and our family is officially recognised.

Until then I’ll be continuing to work on my swaddling skills and falling in love with our little boy.

Parenthood in less than a week!

by

With our baby due to arrive within the week, I’m feeling a mix of emotions. Excited, anxious, resolute, calm. We are ready. Or at least we think we are ready. Caitlin is now 39 weeks pregnant and will be induced into labour at 40 weeks if our little fellow hasn’t arrived before then.

Although Caitlin has not previously gone into labour naturally, things seem to be a little different this time and there’s no knowing whether nature or the calendar will have the last say. Don and I are still both in Brisbane and Caitlin and Jamie are a 1.5 hour flight and 1 hour train trip away. I’m due to leave tomorrow, Don will follow four days later, and our baby is due to arrive (with some gentle encouragement if required) on Friday. However, we know nothing is certain and either one or both of us may need to make an anxious and hurried journey to try and be there for the arrival of our son.

I am now on my first day of maternity leave and had a wonderful send off last night with my workmates who are all so genuinely excited for Don and I. They thoughtfully provided a card for Caitlin and Jamie and their children, collectively dubbed the ‘tummy family’, no doubt inspired by Caitlin and Jamie’s youngest calling Caitlin the mummy tummy (aka tummy mummy). Like many others, my workmates recognise that there are more people involved in this production than just Don and I.

Caitlin contacted us last week to let us know that their eldest, 7 year old Clara, vented her frustration at Caitlin’s inability to play basketball(!), asking, “why did you have to grow a baby for Don and Andrea – you’re MY Mummy, it’s not fair! Why couldn’t someone else do it?”. Although Caitlin described this as a fleeting lapse in Clara’s otherwise insightful disposition, it reminded us that we need to continue to be vigilant and mindful of the potential impact, particularly on the little people. Caitlin explained to Clara that helping others is important; though it can be hard at times; an explanation which I believe Clara accepted and a positive message which she will hopefully carry with her into the future.

Naturally, we also have the impact of the pending birth on our minds. We are anxious that all goes well for both our unborn child and Caitlin. All going to plan, we will be there to support Caitlin through the labour and birth, along with her husband Jamie. We know we are powerless to do anything to guarantee a smooth delivery and need to rely on the expertise of others – our midwife, and if necessary, an obstetrician – on the day (or night, or day and night!).

The hospital has promised to be very accommodating of our somewhat unusual circumstances. We will be in the birthing suite throughout (aside from any times that Caitlin wants some privacy), and if a caesarean is necessary, we will be allowed into the operating theatre. At birth, our baby will be handed to us almost immediately and Don will be invited to cut the cord. If necessary, I will stay with our new baby in the hospital, along with Caitlin, and we’ll all be discharged together when we are ready.

I have heard of less accommodating institutions and hand-overs of babies in hospital car parks so I am
very thankful for our hospital’s recognition of our pending parenthood. In fact, everyone around us has treated us no differently to other expectant parents; recognising that we experiencing the same fears, hopes and dreams for our unborn child.

And now all we have is a short wait ahead of us until we meet our son!

When are you due?

by
    The old adage ‘time flies’ is true. Certainly as we age, and take on more responsibilities which fill up our days to the brim.

    Our little man is now 35 weeks in the making.

    Anticipation of his arrival is building, as is our list of jobs to do.

    Caitlin, our surrogate, is doing okay despite some lower back problems associated with this later stage of pregnancy, and we continue to count our blessings.

    We are carrying on as most parents-to-be. We’ve had a get-together of family and friends to celebrate our pending arrival (aka baby shower) and we’ve holidayed (in India – perhaps unlike most parents-to-be) and enjoyed some final ‘just the two of us’ relaxation and adventure. Now we are nesting furiously.

    We will be visiting Caitlin, Jamie and their kids in one weeks’ time for a final appointment with our midwife and a 36 week scan. Although the scan seems surplus to requirements, it’ll be great to see how our bundle-to-be has developed. Though it isn’t long now until we will meet him in the flesh…!

    In these later stages of Caitlin’s pregnancy I have become more aware of my non-pregnant state; that I am not growing, not slowing down, and to others, not obviously about to become a mother. No one is querying when I’m due or whether is it my first. Sometimes, when children come up in conversation I may mention that we’re about to have our first, but mostly I let it go.

    I didn’t anticipate missing this – the ‘social’ rather than physical aspect of pregnancy.

    On the flipside, Caitlin is growing, and is slowing down, and people are asking her when she’s due. We anticipated Caitlin having to manage enquiries like this – from the checkout operator to the neighbours – and we knew that after a while it would get tiresome for her having to tell the full story. However, we knew it would be important for her to do so, mostly in the presence of her young children, who would be confused if one day Caitlin provided the full story (that the baby is Don and Andrea’s) and the next day she didn’t, letting the enquirer think that she’s expecting her third child.

    Back when Caitlin offered to be our surrogate and we were keen to understand as much as posible about what would be involved, we learnt from another surrogate that for her, this was one of the most challenging aspects of surrogacy – having to explain herself time and time again. With only five weeks to go, we are reasonbly confident that Caitlin will be able to continue to tell our story and not crack in the process!

    As for me, I have avoided being on the receiving end of any unsolicited belly pats and can be selective about who I share our wonderful news with. There is so much excitement out there amongst our family and friends that I don’t feel wanting as a result of a lack of questioning about my impending motherhood by strangers. My parents are becoming grandparents to their daughter’s child – something they could only hope for in their wildest dreams. And our friends, including my old friends who knew me when I was ill and supported me through that time, are thrilled about this wonderful turn of events in my life. Their excitement is contagious. Not that I need to catch any. I have enough of my own already.

Here’s to selfless friends

by

Surrogacy has had a bit of a bad rap in the media of late thanks to a Western Australian couple who left behind one of their twins born to a surrogate mother in Thailand. This case has highlighted how surrogacy arrangements can go terribly, terribly wrong, and the risk is much higher where the arrangements are commercial and the people involved have no prior relationship on which to base such a significant undertaking. For Don and I, this case has also highlighted how lucky we are to have Caitlin, a good friend who we have known for years, carrying our child with the love and support of her husband, Jamie, and family.

Without Caitlin’s help, our journey to parenthood would most likely have been much longer, with many more hurdles, and perhaps, ultimately, not complete. We certainly wouldn’t be where we are today – 22 weeks pregnant, organising a ‘we are having a baby’ party, making leave arrangements with work, and starting to collect baby items in anticipation of our pending arrival.

We know we are very fortunate to have been able to turn to our existing circle of family and friends for help to have a child and then even more fortunate to receive an offer of help from within that circle. If it were otherwise, I’m not sure we would have pursued a commercial arrangement internationally. For one, it’s illegal for us, as ‘ordinarily residents in Queensland’ to do so. Altruistic surrogacy, where no money passes hands, other than out-of-pocket expenses, is all that is available to us lawfully. Although we have since learnt that ‘perfect strangers’ with generous hearts and working wombs are out there willing to help couples like us on an altruistic basis, the path to finding that perfect stranger and then proceeding to have a child with their help would have been paved with a heightened sense of uncertainty and concern.

Needless to say, I am feeling very grateful for our friends’ generosity, particularly at this time among the furore about a commercial surrogacy arrangement between strangers gone wrong.

Our team approach to growing our child continues and Don and I are relishing the experience. We have now set up weekly skype sessions at Caitlin’s suggestion. When possible Jamie joins in, and sometimes their kids too. Everything is going as well as we could hope for. Our baby boy is making his presence felt, Caitlin and Jamie’s children have responded positively to the news that their mum is helping Don and I to ‘grow’ our baby, and there have been no second thoughts on anyone’s part about our decision to embark on this journey together.

The only negative so far is the recurrence of a bad back that Caitlin experienced with her last pregnancy. Even with this history, she still volunteered to help us! Caitlin is doing all that she can to manage it with osteopathy and massage, but we feel helpless and responsible. She is unable to exercise as she normally would and unable to lift up her two year old son. Knowing that Caitlin is going through this now and will experience increasing levels of discomfort as the pregnancy progresses is something we have to accept. That said, it’s hard at times to not feel guilty, particularly when I am able to go about my normal day-to-day activities, riding to work or swimming on a weekend, and remain physically unaffected. I at least spare a thought for Caitlin at these times and make a silent vow of thanks.

Here’s to selfless friends, may they reap greater, though unexpected, rewards.

15 weeks, healthy and a boy!

by

13weeks1

You can learn a lot in the space of a few weeks.  And your outlook can change significantly as a result.  Of course this is the case for most, if not all aspects of life, but right now I’m talking about pregnancy. 

Three weeks ago, Don and I were using the words ‘if’ and ‘it’ when talking about our baby, now we are using the words ‘when’ and ‘he’; we were uncertain whether we were ever going to be parents, now as each day passes we are increasingly confident.  A wave of calm has washed over me, and the anxiety associated with the first trimester of pregnancy has dissipated.  In a way I feel like we’ve been in a state of suspended animation, but now we’re moving forward and it feels great!

Of course there is much water to go under the bridge yet, as Don says, but it’s wonderful to know we’ve passed through what are generally known as the most treacherous of waters.

I had thought now that we are through the initial counselling, legal agreement drafting and IVF treatments, and our surrogate is pregnant, there may not be a need to continue this blog.  I probably won’t have any more tips to share about the process and really, we are like any other expectant parents now.  But, with a little further thought I have decided that it is worth continuing to document our experience as we go as there are (obviously) some fairly significant differences.

We know nothing other than our current ‘team’ approach to pregnancy and we are loving the experience of it.  I have always liked the saying that it takes a village to raise a child, and in our case, it is taking a small community to grow one too.

All four of us, Caitlin, her husband, Don and I, filled the little room in the medical imaging practice, and delighted in seeing our baby from all angles. The sonographer was also fantastic, treating us all as we are – a team – and acknowledging Don and I as the parents-to-be.  We took with us some printed pictures from the scan, one of which was chosen by Caitlin and her husband’s 6-year-old daughter to stick on their fridge at home.  Then, a week later, we skyped each other so that Caitlin and her husband could open an envelope containing the results of our cell-free DNA blood test, where we learnt that we are having a boy!

It helps that we are great friends already, hold a mutual respect for each other (though our admiration of Caitlin has now blown all previously held records) and we have similar outlooks on life.  We recognise that it’s not going to be an easy path, for Caitlin, her family, or Don and I, but we are committed to making it work and doing it ‘right’, whatever that entails. I think this has made our journey so far a pretty good one, and now I am really, really excited about it continuing.

Woo hoo! It worked!

by

I have been wanting to share this post for sometime now, but have been otherwise occupied this past month – getting hitched to my wonderful now-husband.  I thought I loved him beforehand, but after working with him to put together the wonderful day we had with our family and friends, and with each other, I love him even more. Sorry. I think I’m allowed a certain amount of self-indulgent sentimentality in this blog aren’t I?  Anyway, it’s true (Don can’t believe I’m a lawyer and try to use ‘it’s true’ as a means to win arguments with him).

Our day was made even more special by the fact that our first transfer attempt had worked and Caitlin, our surrogate, was nearly 7 weeks pregnant on our wedding day. Woo hoo!  A shotgun wedding!  This was something we’d hoped for in our wildest dreams and didn’t for a moment expect those dreams to become reality.

Now that the distraction of the wedding and honeymoon has passed, the reality of the pregnancy is really sinking in. All going well, we will be parents before Christmas. The due date is 13 December, but Caitlin has told us that she has gone at least a week longer with her other pregnancies so we are working towards 20 December as a ‘managing our expectations’ date.

Caitlin shared the wonderful news that she was pregnant with us one Tuesday evening (I’m pretty sure it was a Tuesday), only 5 days after the transfer.  She had left a message on each of our phones to give her a call and I remember driving home hoping that she was feeling sick but telling myself that things had probably not gone as we’d hoped (there was only a 1 in 3 chance that the transfer would work after all), and that we’d be able to try again.

So when Caitlin told us she’d been experiencing the unmistakable signs of pregnancy and had a positive home pregnancy test in her possession to prove it (she actually said she’d eat her shorts if she wasn’t pregnant so I suspect she didn’t really need the home pregnancy test for her own benefit) I was very, very happy but also hesitant to believe our new reality.  It really took me a while to digest the news and accept our good fortune.

I am still in awe of how quickly Caitlin knew she was pregnant, with feelings of nauseousness and a heightened sense of smell, within just 3 days of the transfer.  I know there’ll be much more to be in awe of as time ticks on. Every now and then, like right now, I have a yearning for it to be me experiencing it all first hand. But, I know that’s not possible.  Instead, there is this amazing friend going through it for me, being sick on the footpath (hormone surges between 8 – 10 weeks will lead to this apparently), feeling tired and emotional, and being forced to limit her otherwise very full life.

The next steps in our journey are a blood test next week and then a 13 week scan on 6 June. I’m anxious about the results of these tests because despite our thorough pre-surrogacy counselling, during which we were required to consider every possible worst-case scenario, there’s no way to prepare for bad news other than hope that it’s good news. Setting the anxiety aside, I’m very excited and looking forward to seeing how much our embryo (actually now a foetus) has grown. I’m sure there’ll be tears in my eyes just as there were when we saw the 7 week old heartbeat on the Monday morning after our wedding.

Wow. I’m going to sign off now and pinch myself.

Our first transfer attempt…

by

So, a month or so has passed since my last post and today Caitlin, Don and I met at the front of the day hospital, the site of our first ‘transfer attempt’. 

A few days ago, three of our frozen embryos, all approximately 2 days old, were taken from the freezer.  Thankfully, all survived the thaw and at least one of them grew into a good looking, transferable blastocyst.  For those of you who don’t know what this means, it’s a distinct stage in an embryo’s growth where the cells differentiate into inner and outer cell masses, the inner being the embryo and the outer being an early placenta.  Now that blastocyst is in Caitlin’s womb hopefully doing what it needs to do, ‘hatching’ and ‘implanting’ to be there for the long haul.  We have been told there is a 30% chance of this happening, so we know the odds are stacked against us, but we are hopeful nonetheless!

Our fertility specialist met us in the waiting room after the 10 minute procedure was complete to let us know that everything had gone well, and that our other two thawed embryos were looking good and likely to be re-frozen. This was a bonus to hear in a process which has so far involved attrition at every turn.

Although there wasn’t much Don and I could do today, we still wanted to be a part of things and also wanted to support Caitlin taking this significant step.  If things go well, I know there will be many more tests, medical appointments and procedures where Don and I will need to balance our natural enthusiasm against not wanting to over-step the mark, and I imagine Caitlin will have her own balance to maintain. We are all reasonable people though, and counselled to boot, so I’m confident we will be able to manage!

The past month since our first transfer attempt was postponed back in mid February has gone relatively quickly.  The next 12 days may go a little slower…

But, it’s a time for us to cross our fingers and again feel very grateful for our wonderful friend’s generosity in giving us hope that we may now actually have a bun in the oven!

One of the greatest gifts a woman can give

by

Now that I’ve got the business of fertility specialists, lawyers and expenses out the way with my recent posts, I can move on to write about our current situation and the wonderful generosity of our surrogate, Caitlin.

I’ve entitled this post ‘one of the greatest gifts a woman can give’ because there are many gifts out there in the world to share, but in my view, right now, offering to carry someone else’s child in her womb is the greatest gift a woman can give. I obviously feel quite strongly about this, because tears of gratitude just welled in my eyes.

When Don and I decided to give surrogacy a go, we were hopeful that someone within our circle of friends and family, or someone beyond that, may offer to give this amazing gift to us. The hope was so great, so sooo great, but we knew we could not expect it from anyone. The day Caitlin and her husband called us to let us know they would like to help us out, we couldn’t quite believe it. In fact, it took us a while to realise they were actually offering, and not just telling us, ‘we’re thinking about it’. We had our first conversations tentatively, not wanting to presume anything and also wanting to manage our own expectations. These conversations were made a little trickier as they happened via Skype (we live in different cities) and there were a few ‘can you hear us?’ moments along the way…

Once we got the message, or more so, let ourselves hear the message, there were tears and many joyous moments with family and other friends as we shared this momentous news. With Caitlin’s generous offer, we now felt like ‘ordinary couples’ trying to conceive and were one step, one significant step, closer to having our own child.

That was back in July 2013 and it’s now February 2014. In this time, Caitlin and her husband’s commitment to help us has remained steadfast and for that, no matter what the outcome of our journey, we are eternally grateful. We have attended counselling together, finalised a legal agreement, tag-teamed appointments with our fertility specialist, and more recently, Caitlin has been taking hormones in preparation for our first attempt at transferring one of our embryos into her womb. We had a set back this week – Caitlin’s womb has not responded to the hormones as expected – which means that we won’t be going ahead with our first ‘transfer attempt’ scheduled for tomorrow. This set back coincided with Caitlin experiencing some negative side-effects as a result of the hormones too. It wasn’t a great week, to say the least, but we have made it through to today okay, Caitlin and her husband included, and their resolve to help us remains.

There is a chance that we may proceed with a transfer attempt in a week’s time, and we’ll learn tomorrow about whether that will happen. Otherwise, we’re looking at a further month or so down the track. Hopefully, in time, that first transfer attempt will happen, and hopefully it will be successful. But in the meantime, we thank our surrogate, Caitlin, and her husband, for giving us that hope. It’s a truly wonderful thing to receive.

It’s expensive, but it need not be such an expensive business

by

Our clinic recently provided us with a summary of the likely costs we will incur having a baby via surrogacy from go to whoa. Not to mention that we’re well and truly past go…

This reminded me that I planned to publish a post about costs, and more particularly about the accessibility of Medicare rebates for people undergoing IVF treatment who may also need to use a surrogate. 

From the very beginning, even before we attended our first appointment, we knew we were going to be up for some hefty expenses – doctor’s fees, lawyer’s fees, and our surrogate’s costs.  We now also know there are ‘surrogacy coordination fees’ charged by the clinic for administrative work, including record keeping and meetings of a surrogacy committee who assume responsibility for approving our surrogacy arrangement.  We are fortunate that, after some grumblings on both our parts about these additional unexpected costs, we are able to absorb the costs and continue on. 

Something that we didn’t anticipate was a difference in accessibility to Medicare rebates; a difference between us (needing to use a surrogate) and others (not needing to use a surrogate).  Our doctor informed us about this on our first meeting with him, and we all agreed that this difference (prescribed by Medicare Regulations) seemed discriminatory. It seemed that the clinic’s hands were tied however, and there would be nothing we could do about it but accept the fact that we would be out of pocket approximately double that which other couples accessing the same services are out of pocket. 

I remember cycling home after that meeting thinking to myself and talking to Don about what, if any, action we could take. 

Ultimately, I did take some action, and I’ve summarised the story of my ‘win’ below.  We were granted the Medicare rebates, which we were rightly due, saving us over $10,000 after two treatment cycles.  I have already shared this story with others via an advocate for change to the discriminatory laws which impact clinics’ practices.  I thank this advocate, Melissa, for her advocacy, which prompted me to take my own action.  

Just a word of caution – the story is a little long and dry, but I’ve set things out in detail so others can hopefully take this detail and secure their own ‘wins’.

****************************************

My partner and I knew surrogacy was going to involve significant costs. We did not know, however, that couples requiring a surrogate were not eligible to receive Medicare rebates for IVF treatment. We found this out at our first meeting with our doctor at our clinic. It seemed discriminatory, but our doctor explained that there are laws providing for this differential treatment.

I knew that if a person acts in accordance with a law that generally they will be protected from any claims of discrimination.

However, after reading some material online lobbying for changes to the laws, I considered the wording of those laws (emphasis added):

  • regulation 2.37.7 of the Health Insurance (General Medical Services Table) Regulations provides: ‘Items 13200 to 13221 do not apply to a service provided in relation to a patient’s pregnancy, or intended pregnancy, that is, at the time of the service, the subject of an agreement, or arrangement’.
  • the MBS provides: ‘Medicare benefits are not payable for assisted reproductive services rendered in conjunction with surrogacy arrangements.

The language used in the law and Medicare benefits schedule excludes a rebate for people who, at the time of services rendered, have entered into a surrogacy arrangement. It does not exclude a rebate for people who have not yet entered into a surrogacy arrangement.

So I thought that a clinic which applies the law broadly and does not allow a couple to claim the Medicare rebate where that couple have not yet entered into a surrogacy arrangement (at the time of treatment) would potentially be acting in breach of the Disability Discrimination Act 1992 (Cth).

I raised this view with my clinic (as my partner and I were yet to even find a surrogate) explaining my interpretation of the law as follows:

Section 5 of the Disability Discrimination Act states:
a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

Disability is defined in section 4 of the Act to include:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or …
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or …

A clinic which does not allow a woman to claim the Medicare rebate based on that clinic’s knowledge of the woman’s disability, eg. malformed uterus, treats that woman less favourably than it treats another woman without the disability, as the later is allowed to claim the Medicare rebate.

A clinic may be exempt from a complaint of discrimination where the alleged discriminatory conduct is done in ‘direct compliance’ with a law. The exemption is set out in section 47 of the Act: This Part does not render unlawful anything done by a person in direct compliance with a prescribed law. ….”law” means: (a) a law of the Commonwealth or of a State or Territory; or (b) regulations or any other instrument made under such a law.

A clinic which refuses to provide access to the Medicare rebate to a couple who are receiving treatment but have not yet entered into a surrogacy arrangement is not acting in direct compliance with the Health Insurance (General Medical Services Table) Regulations and therefore would not be protected by the section 47 exemption.

I did some further research after raising my concerns with my clinic to confirm my conclusion and was more confident about the likely outcome when I learnt that the courts have concluded in past cases that the exemption is meant to be applied narrowly:

  • the exemption: “[refers] only to what it is necessary to do in order to comply with a specific requirement directly imposed by the relevant provision”: per Mason CJ and Gaudron J, Waters v Public Transport Corporation [1991] HCA 49.
  • an alleged discriminator: “could only seek to rely on a provision in circumstances where there was (i), a “specific requirement” which was, (ii) “directly imposed” by the relevant provision that gave rise to the conduct in issue.”: Gibbs v Commonwealth Bank of Australia [1996] HREOCA 34.

My clinic sought its own legal advice after I raised my concerns. Presumably this legal advice agreed with my position as my clinic agreed to allow my partner and I to claim the rebate. My clinic told me that they will be changing their policies to allow others in our position (who have not yet entered into a surrogacy arrangement) to also claim the rebate.

I hope that others can use my example to convince their own clinics to allow them to claim the Medicare rebate and change their clinics’ policies for those who follow.

Ultimately, the law needs to be changed, but this is a measure people can take now to try to gain some equality within an inequitable legal regime.

***********************