By Laura Banks
“I hope you enjoyed your home.”
Those were the first words spoken by surrogate mother Jennifer McCloy to newborn Angus, as she handed the little miracle boy to his intended parents, Edwina and Charlie Peach.
It had been a long journey to get to that point. Edwina experienced numerous miscarriages that affected her both physically and mentally. That is when lifelong friend McCloy put her hand up.
Baby Angus, his intended mother Edwina Peach , and his surrogate mother Jennifer McCloy moments after his birth in November 2022. The women are campaigning for change to make surrogacy more accessible in Australia.
After about 40 collective hours of counselling and many hours of legal advice, the IVF process began. The Peaches’ embryo was then transferred in March 2022, and it was a first-time success.
Baby Angus, born to surrogate mother Jennifer McCloy, is now legally part of the family of his biological parents, Edwina and Charlie Peach.
“I had to tell her probably 10 times that I was serious because she was so overwhelmed and, understandably, just couldn’t really believe that we wanted to do that,” McCloy said.
Edwina Peach said it took a while for the offer to sink in. “But I accepted, thinking that this was probably my only chance to ever have a child and I would hate to say no to that amazing opportunity.”
McCloy, from Vaucluse, is one of about 100 women across Australia each year who volunteer to become surrogate mothers, an altruistic decision she and her husband, Ewen Hollingsworth, made to give their friends the chance at parenthood. But it is a decision, they say, that was marred with red tape and bureaucracy.
Surrogates cannot be paid under Australian law or found through advertising. Once the child is born, there is a lengthy process to have the child transferred into the legal care of the intended parents.
“Legally in Australia, we did not have to hand Angus over to [the Peaches]. Even though he was biologically their child, he was legally ours, but the concerning thing is that we also did not have to take him,” McCloy said.
“So If we didn’t take him and the Peaches decided they didn’t want him, he could have ended up with child services. There needs to be changes to the law not just to protect the intended parents and the surrogates but, as it stands, there’s absolutely zero protection in Australia for the child.”
It was not until last week that Angus was legally a part of the Peaches’ family – the rubber stamp from the NSW Supreme Court took nine months. And even then, the paperwork lists Edwina as his father, and Charlie as his mother, so they must again wait for the documentation to be reissued.
“I couldn’t even take Angus to get his injections because he wasn’t on our Medicare card. He is our son, he’s biologically our child, but we had to jump through hoops to just do that,” Edwina said.
“And if anything happened to him in the interim, Jen and Ewen had medical power of attorney, and they’ve already done so much by bringing him into the world, that shouldn’t land on them, he’s our child.”
The women hope that they can achieve change in NSW first, and then will take their campaign to the other states.
Jennifer McCloy (left) was the surrogate mother for her close friend Edwina Peach. The experience has spurred them to campaign for a call to action to change the surrogacy laws in Australia,Credit: Dion Georgopoulos
The pair will tell their story to the state government this week when they meet NSW Attorney-General Michael Daley, who told The Sun-Herald he was ready to listen.
Surrogacy in NSW is regulated by the Surrogacy Act 2010. It was last subjected to statutory review in 2018. A spokesperson for the attorney-general said the laws included “the [parties’] ability to change their minds about continuing with the arrangement after the birth”.
“The thing in Australia, though, is that you go through all this counselling, as the surrogate and the intended parents, and you’ve done all this legal work before you get to the point of implanting an embryo, so I don’t see why you can’t have all the paperwork drawn up, and the moment the child is born, why he can’t legally belong to the intended parents from that moment,” McCloy said.
“It is not like adoption; no one goes into a surrogacy arrangement without being clear about who the intended parents are and who the child belongs to.”
The same view is held by Alice Clarke, who, in 1988, was the first Australian child recognised to have been born via surrogacy.
Alice Clarke was the first child recognised to have been born via surrogacy in Australia in 1988. She agrees that surrogacy laws need to change.Credit: Paul Jeffers/ The Age
“Straight after I was born, they made [surrogacy] explicitly illegal, and they didn’t make it legal again in Victoria until I was about 19 and, in NSW, it was a bit earlier, but not much,” Clarke said.
“One of my earliest memories is a bunch of religious people going on TV and saying, Alice Kirkman [maiden name] is a person many believe should never have been born, and that continued for years.”
Clarke, a freelance journalist, said the “biggest problem” for surrogates and intended parents was from “people from the outside” who were not involved in the process and who have likely not faced challenges that precluded them from carrying a child.
“But the fact is the kids are fine. I have never met an angry surrogate kid or a person who regrets being born using surrogacy,” she said.
“Everyone is entitled to have a child if they want one and things need to change to allow for that and to allow for the ease in transferring [parentage] because that lessens the impact, mentally and financially, on all parties involved.”
Until 2014, Clarke was against compensated surrogacy, but that changed when she saw the case of baby Gammy.
Baby on board: Intended parents Edwina (second from left) and Charlie Peach (right), and surrogate mother Jennifer McCloy and her husband Ewen Hollingsworth. The women are campaigning for change to make surrogacy more accessible in Australia.
Gammy and his twin sister were born in 2013 in Thailand via surrogacy, for intended parents from Bunbury in Western Australia. When Gammy was born, he was diagnosed with Down syndrome and left behind with his surrogate, while his genetically healthy sister Pipah, returned to Australia with their intended parents. The case caused international outrage.
“I realised that people are going to use commercial surrogacy and if we regulate it in Australia, we can make sure there are fewer ways for it to be abused. We can make sure everyone in the process is kept safe,” Clarke said.
Surrogacy lawyer and former surrogate Sarah Jefford said a cap on compensation could be introduced to reduce the risk of exploitation.
“In Mexico or Ukraine, where the surrogates are recruited for their reproductive ability only – and it’s usually because they don’t have money – surrogacy is offered as this really great option to feed your family, but you’re in the middle of a war zone, or the healthcare is limited and there are no guarantees for baby or Mum,” Jefford said.
“Whereas if you go to the US, there is money involved – and it’s actually significantly more money – but we know that the surrogates are screened mentally and physically and everybody gets independent legal advice. And while money might be part of the motivation, it’s not the sole motivation, [surrogates] are engaged and informed, and they have decision-making power.”
Jefford said the laws, as they stood, encouraged “blackmarket” alternatives.
“People who go into mines or drive cranes or work on oil rigs, they all take risks with their bodies, but they’re paid and that’s regulated. The IVF clinics, the doctors, the lawyers, everyone else is making big bucks except the person who puts her body and health on the line,” she said.
Monash University PhD candidate Ezra Kneebone, who is researching the needs of surrogates and intended parents in Australia, said some surrogacy laws were based on outdated assumptions on how a surrogate should act and feel, rather than lived experience.
“This is because, for some, surrogacy is a controversial topic that challenges traditional views on family and motherhood,” she said.
Kneebone said surrogates were not eligible for Medicare rebates for IVF services, and were frequently left out-of-pocket.
“The IVF doctors, the lawyers and the counsellors are compensated for their role in the arrangement. I think it’s only fair for surrogates to receive compensation for the time, effort, risks and pain involved with carrying a pregnancy and giving birth,” she said.
Kneebone was one of 14 researchers across the fields of law, bioethics, public health, anthropology and medicine who wrote to the Senate Inquiry into Universal Access to Reproductive Healthcare last year to ask that surrogates be able to access Medicare.
The academics were heard, and the inquiry recommended the change, but it is yet to be introduced.
Both McCloy and Peach realise there is a long road ahead to see the change they believe is needed but say they are committed to the fight.
“Why wouldn’t we do it on our own soil where women and men are safe, and introduce the appropriate legislation, so everyone’s rights are protected?” Peach said.
”We boast one of the world’s best healthcare systems, we’re supposed to be a progressive country. It’s about time we started looking after those who want so desperately to be parents and by no fault of their own, can’t.“
The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.