This month’s show focuses on assisted reproduction, and the legal and psychological implications. Accredited family law specialists Ben and Heather talk to Miranda Montrone, a Sydney based psychologist who specialises in counselling in infertility and assisted reproduction.
One in six couples in Australia and New Zealand suffer infertility, and of course, a growing number of same sex couples and single women are choosing to have children. So, it’s not surprising that 1 in 25 Australian babies is born via IVF. The percentage for surrogacy is smaller, yet it still accounts for an estimated 300 Australian births a year.
Miranda Montrone is a practicing psychologist with over 30-years’ experience counselling in infertility, IVF and surrogacy. She is considered the pre-eminent expert in this field. As well as her ongoing counselling work, Miranda has written a number of papers on IVF and surrogacy, presented at conferences for both health professionals and family lawyers, and provided advice to Parliament when they were drafting the 2010 NSW Surrogacy Act.
Together Miranda, Ben and Heather cover off the following subjects:
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Benjamin Bryant: Hi, everyone, and welcome to Episode 8 of The Family Members Show podcast. I’m your host, Benjamin Bryant, from Bryant McKinnon Lawyers. Today, we’re going to go deep on a subject that is increasingly affecting Australian families: assisted reproduction. Some of you may be surprised by this topic, but our show is all about family matters. And we are excited to be leaving divorce and separation behind for a month, and we’ll focus on how to start a family.
Benjamin Bryant: I had a look at the statistics in preparation for today’s show. A whopping one in six couples in Australia and New Zealand suffer infertility. So, it’s not surprising that many of these couples are turning to assisted reproduction to form their families. One in 25 Australian babies born via IVF. Although the percentage is much smaller for surrogacy, it still accounts for an estimated 300 Australian births a year. Today, we’re going to explore both the psychology and the legalities of surrogacy and IVF with two highly qualified experts. The first is my business partner and well-known family law specialist, Heather McKinnon. Hi Heather.
Heather McKinnon: Hi Ben. It’s great to be looking at this subject and the ways that families get formed.
Benjamin Bryant: Agreed. And the second guest is a very special guest. Miranda Montrone. We are so excited to have Miranda on today’s show. A practicing psychologist based in Sydney, Miranda has over 30 years’ experience counselling in infertility and assisted reproduction. She is considered the pre-eminent expert in this field. As well as her ongoing counselling work with clients. Miranda has written a number of papers on IVF and surrogacy, presented at conferences, for both health professionals and family lawyers and provided advice to Parliament when they were drafting the 2010 New South Wales Surrogacy Act. So, she’s certainly an expert in the field. Welcome to the show. Miranda.
Miranda Montrone: Thanks very much Ben. It’s actually my pleasure to be here. Thank you.
Benjamin Bryant: We’ve got so many questions for you, Miranda, so we better get started. Let’s start with a general one. You have spent over three decades counselling couples facing infertility issues. Are you able to give us some insight into what options you explore with your clients?
Miranda Montrone: Sure. Thank you. It depends very much where people are in their infertility. I mean, if they’re at the beginning where they’ve just had difficulties having, you know, things happening at home. So, they’ve been trying for a while and everybody else around them seems to get pregnant, no trouble. And in that one in six couples, there are people that at the end of that year, they haven’t gotten pregnant and the recommendation is at the end of a year of trying without any pregnancy occurring that you contact a specialist. And they end up fairly quickly now at an IVF clinic and for them it’s helping them understand that maybe this is the way they have to do their trying to have a family. It’s also about helping them understand how to manage it and the options that the doctors are talking about and what the diagnosis can mean. So, for example, if a man has significant sperm problems and he’s had no idea, what does it mean to him as a man? And if a woman has, low egg numbers, what does that mean? So, it’s how does that diagnosis help them.
Miranda Montrone: At the other end, there are people who have very, very significant problems that may have known for some time. So, people who’ve had cancer or they’re born with a problem or gay men, for example. So, the issues that you discuss with people, depend on where they are and what they’re doing at the time and the medical and scientific recommendations for them.
Benjamin Bryant: And let’s talk in more detail about surrogacy. As I said in my intro, you provided advice to Parliament when they were drafting the 2010 Surrogacy Act. So this is an area that you have a great deal of expertise. When would you say that surrogacy is a good option for would-be parents with fertility issues?
Miranda Montrone: First off, what it’s not. And people can often think they have like a number of IVF cycles and they don’t get pregnant, people can think, I need to do surrogacy. That isn’t a usual next step. It’s usually for people who… they have to not have a uterus is the standard recommendation. So, somebody born without a uterus or somebody who’s had their uterus removed because of cancer, or sometimes it can be a significant health problem for the woman or for her child if she carries the baby. And then, of course, there’s the gay men who by definition don’t have a uterus. So those are the people who are going to be doing surrogacy and may also involve donor eggs as well. That’s another whole issue. But most surrogacy uses the embryos of the intended parents.
Benjamin Bryant: And since only altruistic surrogacy is legal in New South Wales, presumably most surrogate mothers are known to the intended parents and are likely to be present in the child’s life. What sort of arrangements have you encountered? And do you have a sense of what works best?
Miranda Montrone: That’s interesting. Research from the UK, where they do quite a bit of altruistic surrogacy, it isn’t necessarily the case that they are known to each other. There they have some very active external agencies that recruit surrogates. I think it’s quite different.
Miranda Montrone: I’ve just done an analysis of 15 years of my surrogacy cases, 160 cases and that’s 602 people. And in that group of people, the very large majority of people are known, the surrogates are known to the intended parents. So about 50 per cent are very close family, like sisters, sisters in law or mothers. In the beginning, it was very much very close family. So, 20, 25 years ago was very close family. But as it became more known over time and legal, because it was happening even before it was legal, it just wasn’t advertised a lot. And now more it’s very common that people are extended family or friends or friends of friends. And so they may have a connection somehow. In this large group of people that I’ve studied, only 5 per cent come through online surrogacy forums.
Benjamin Bryant: The next question is a legal one. So, this one’s for Heather. How do the intended parents become legally recognised as the parents?
Heather McKinnon: So, under the legislation in NSW, there’s two stages where there is important legal documentation. When a surrogate arrangement is structured, that’s formalised by an agreement. So, the surrogate mum and the intended parents, whether that’s a single mother or a couple, enter into formal documents that set out how the surrogacy is to proceed. They also go through mandated counselling, where people like Miranda see all parties to the agreement to make sure everyone clearly knows what they’re doing. The check that’s also there is that the mum, who is the birth mother, has to be twenty-five, except in exceptional circumstances. And that’s obviously to do with psychological maturity.
Heather McKinnon: At the other end, once we have this beautiful little human life in the world, then the legal process requires that there’s a second agreement, which sets out the formalities to transfer or formalise that the parents of the child are going to be the family that are going to raise the child. Wo that there’s a handover, if you like, from the biological mum who’s the surrogate, to the intended parents who were recognised in that first agreement. Again, the system sets up that check and balance so that someone like Miranda, a specially qualified psychologist, sees the family to make sure that everybody’s comfortable with the agreement before the judge formalises it. And a judge can’t formalise it unless someone with Miranda’s expertise has done the counselling and said “this is appropriate to this child” and documents that for judge.
Heather McKinnon: I’d be interested to hear about couples that are ineligible through that counselling process, it’s deemed they’re not suitable. That’s an area that I’m really interested in. So Miranda, over to you.
Miranda Montrone: Oh, okay. Well, also on that topic, there’s the three different sorts of counselling that are required by the act in New South Wales. And that first one is the pre surrogacy. So, everybody has to see somebody before they try for a pregnancy. So, it actually is most often done through a clinic, because most often they use the embryos of the intended parents. But it can be a home insemination surrogacy, for example. And that’s what we now call a genetic surrogacy, sometimes called traditional insemination. If they want to do that, they still have to do pre-surrogacy counselling. And I’ve done that for people, not many, it isn’t very common, but it has happened. So, with regard to that whole Section 35.1, the pre-surrogacy implications and assessment counselling, they have that lovely legal word, which the first time I read about it, I thought, really? So, they have to be assessed as “suitable” parties to participate in a surrogacy arrangement. And for me, that “suitable” word in the beginning was like, do I think those shoes match that dress? But you know, that obviously isn’t it? So, I have now worked out what “suitable” is. So, it’s like, has there been time and space for people to know what they’re talking about? If people are in a hurry, I like to slow things down. Do they have the abilities to understand? Have they considered everybody involved in it? Are there any significant signs of psychopathology or any relationship problems or are there any indications of coercion, either implicit, as in somebody feeling obligated, or explicit? Is there any money changing hands, which isn’t permitted? Or is any pressure being put on people? So, all of those sorts of things.
Miranda Montrone: I am very big on time and space and consideration. So, I make sure people get information beforehand. I write an extremely thorough report that they all see, so they know what everybody’s saying. Even though the act says it’s about suitability, for me, it’s about really, really thorough, informed consent. Have you thought about it for everybody? , The children of the surrogate. I think the best interests of the children of the surrogate is important, too. And then if there’s a donor as well, then even if that’s not officially part of the whole implications assessment, it’s part of the whole story about how this child’s going to be born.
Miranda Montrone: With regard to the “deemed not to be suitable”, I haven’t found it to be a big percentage. So less than 5 percent, a very small number. And it’s usually been quite clear. I’ve had to say to people, “Really? You really think this is a great idea? What about this, this and this?” A couple of times people have been deceptive. A couple of times there’s just been clear problems.
Miranda Montrone: There’s maybe another 10 percent that I say, “Okay, look, I’m not going to say no, I’m not going to say it’s not suitable.” I feel a bit overwhelmed with that sort of godlike responsibility. But I will put preconditions. So, I’ll say you need further medical consideration about this. You need to discuss this particular situation with your legal people. I want you to do these steps before you do it. And not uncommonly. I will suggest that the intended mother, most often the intended mother… I will suggest that they have therapeutic counselling, not from me, from someone else during the surrogacy and after the birth. So, to be born without a uterus or to have cancer and have your ability to have a child is huge. This is not something trivial. This is something that, you know, really, really goes to the heart of what does it mean to be a woman and what does it mean to be a mother and to have children. And for a woman to have that ability taken away is really quite significant. So they can be very buttons pressed for the woman, emotional buttons. So, I will put like a condition that’s part of the deal. But it’s very rare that I say someone is not suitable. And when I do, it’s pretty clear why I’m saying it.
Benjamin Bryant: And Miranda, as Heather said, we know that surrogacy arrangements must be altruistic in nature. Are there any risks that the surrogate parent will change their mind?
Miranda Montrone: That’s an interesting question. Thanks, Ben. It was what was behind everybody’s mind when the surrogacy first started in the late 90s. And there were actually two cases that were in the media. One was a famous case in America called Baby M and the other was a case in Australia called Baby Evelyn. And in both cases, the surrogate changed her mind about relinquishing the child. So, it’s always been an issue and it’s been part of my thinking the whole time. But over time, I have not met a surrogate that wanted to keep the baby.
Miranda Montrone: So, this is a very important issue, though. So, they don’t go into it with that intention. But their body has to be fully committed to gestate this baby and to totally go through the whole process. It’s like a mind body disjunct between one thing saying one and the other saying the other. So, they can, after the relinquishment, they can feel a bit funny. And it’s not uncommon that the women will feel quite uncomfortable. So, what I now, and for a very long time, have talked about in the pre surrogacy counselling, I talk about this mind body disjunct and work out a preventive psychological health intervention. I believe that if after the handover, the surrogate mother says to people, “I feel funny”, the intended parents (this is very deep, remember), they can think, “Oh, my God, she’s changed her mind. She wants the baby.” The surrogate, therefore, maybe doesn’t say if she feels funny. So, this can increase that feeling.
Miranda Montrone: So, what I do is I say and it’s written in my report again. So, I say to the surrogate, okay, what you do is you just ring them up and say, “I need a hug attack. I need a cuddle”. And the intended parents know this. So, they say, sure, when’s a good time? So, she comes around, has the baby, holds the baby in her arms close to her body. And as she does and they just talk and whatever and they say hello to the baby, this beautiful little possum that’s born in the world because everybody’s been so cooperative and wonderful together. And then after a while, her body sort of feels: “No, the baby’s fine”. It’s not like it’s not like that terrible fear that something dreadful has happened. Deep, deep in her body. So, then the baby will cry or do a poo. And so, she then picks the baby up, hands the baby to the intended parents and says, “Not my baby. I might go home and have a glass of wine”. So, this to me is a way of reducing any of that deep stuff that can lead to a surrogate feeling, “Oh, my God, I made a mistake”.
Miranda Montrone: I think that, any of the cases that have hit the media, if there’s been any concern like that over the last 20 years or so, I think it may be a manifestation of other issues in the surrogacy arrangement that have hit glitches, rather than that she’s not wanting to relinquish the baby.
Benjamin Bryant: And what are some of the issues in post surrogacy counselling sessions, Miranda?
Miranda Montrone: New South Wales really, really did a very, very good job, I think we’re the only state that has that requirement. When it first came in with the Act in 2010, I thought oh, these poor people, they’ve been through everything, they know what they’re doing. You know, they’re on board. But I now think it is the best and the most important part of the whole surrogacy counselling. It’s the only one that is totally focused on the one person who has skin in the game.
Miranda Montrone: So, it’s not about checking to see if she’s changed her mind. It’s about running through it. How did it go? How did your family react? How are you feeling now? Are you feeling at all weird? How did you go with the cuddle times? How did your children go? What about your family and friends and your work colleagues? What did they think and say? And then how’s it all going now? So, it’s like a line in the sand before they move to the next step.
Miranda Montrone: Ben, it is amazing. This is a particularly lovely area of work to work in. People are doing really nice things to help each other. It’s also it’s quite special if we think about it. It’s quite deep and quite special to do something that helps create a human being that wouldn’t otherwise exist.
Miranda Montrone: We do it very well in Australia. This idea that, it’s not an idea to me, it’s a basic tenet and it’s really, really important, that the woman has sovereignty over her body. It’s quite crucial. And bluntly, I wouldn’t work with a situation where that wasn’t the case, because I don’t think that anyone should tell another woman what to do with her body. So, it’s very much part of what we do well in Australia, and we do it extremely well in this area.
Benjamin Bryant: Speaking of Australia, reminds me that one thing we haven’t talked about is overseas surrogacy. Usually this ends up being a commercial arrangement, which we know is illegal in Australia. Miranda, in your experience, what are the options for people who do not have close family or friends to act as a surrogate? Is their only option to look overseas?
Miranda Montrone: No, the short answer is no. Though it can feel like that when people find out they need a surrogacy, particularly if it’s at the last minute, when something happens like cancer. They can feel overwhelmed about it. They don’t need to. Basically, though, as one intended father said to me one time, it’s not like you’re asking someone for a cup of coffee, so you can’t ask people. And most women will say they can’t do it. When someone says they’re being a surrogate, other women will respond, “That’s amazing. I couldn’t do it”.
Miranda Montrone: So basically, what intended parents have to do, they have to just be patient. And I’m not talking years. I’m just saying get your embryos stored. Get everything organised. And if the intended mother has to deal with some of the emotion of a loss, the reproductive loss that’s happened to her, deal with it and settle. At the same time calmly, calmly tell every person they know this is what’s happened. This is what we have to do. We need a surrogate to help us. So, you tell family, friends, colleagues, work acquaintances, without implying that you’re asking. But just tell them. What that does is then give people time to think. They may then say, which is what happens sometimes, to someone else, “Oh, it’s so terrible. This is what happened. So-and-so needs a surrogate.” And the person may say, “I’ve always wanted to do it.”.
Miranda Montrone: So that’s how it’s happening more and more now. It’s through the extended connections, rather than the close family. There are opportunities through online surrogacy forums like through Surrogacy Australia forums where five per cent of the people I studied over fifteen years got their surrogate. Surrogacy Australia have a very good process that they’ve set up. The difficulty is that there’s a lot more intended parents than surrogates. So basically, you have to do all of the above. And I find that people do end up finding a surrogate and it ends up going along well here. I don’t believe it’s necessary to go overseas. I think you can do it here and I think it can be better here.
Heather McKinnon: Miranda, it’s important that people understand that many overseas jurisdictions don’t have the checks and balances that we do have in Australia to protect everybody. Most importantly, the child. And it is the case that we’d like to see all overseas jurisdiction having best practice model like Australia does. Commercial surrogacy is something that’s happening all around the world, but Australians need to know that, that should be a second option. Many of the jurisdictions where commercial surrogacy is available simply don’t have the checks that we have here. And I think it is important that Australians understand that once you leave our shores, the well thought through framework for surrogacy is not necessarily in every country around the world.
Miranda Montrone: Yeah, I would agree with that.
Benjamin Bryant: And now let’s move away from surrogacy and talk about IVF or assisted reproduction. The whole process of conceiving by IVF can be very stressful for would-be parents. Miranda, what do you find are the most common issues that arise when you’re counselling couples who are going down this path?
Miranda Montrone: In terms of IVF, generally, it is like an emotional rollercoaster. So, most people, they use their own eggs, their own sperm, their tubes are fine. And the odds are it’s just not working. So, they then move to IVF. So, what will happen is people will think, “Oh okay, it hasn’t worked. Right. We’ll do IVF”. So I used to, when I was the clinic counsellor, see people routinely just for a catch up and a chat and they would sort of look at me as if to say, “Well, I don’t need to see you because I’m going to be getting pregnant on the IVF cycle”. And the odds on getting pregnant on the IVF treatment have gone up very significantly. The scientific advances have been quite, quite astronomical, but still it’s not guaranteed. So, at the very beginning, it’s just helping them understand the process, helping them with understanding how the system works, what they’re going to have to do, etc.
Miranda Montrone: As time moves by, if they’re not getting pregnant, that’s moving into a different area. Now, there’s quite a bit of anxiety and depression, particularly for the women, but they go through all sorts of emotions. Say, for example, a man has a sperm problem. He can feel a real shame that he has this sperm problem. It really taps into that sense of manhood and who you are. Or the woman. Maybe she has blocked tubes. Maybe it was tied up with an infection that she had when she was younger. She can feel a sense of shame there. So, there’s a lot of different emotions that come into people and you help them with that. Also, when they’re both going through it, they’re struggling with all of these things at the same time. So, they’re less available to help each other. And that’s where the job of the infertility counsellors that are working with clinics come into play.
Miranda Montrone: And then there’s also the issues about what does it mean when everybody else around them can get pregnant? And a lot of people give quite interesting unsolicited advice like, “just relax”. Which is one of the most useless types of advice. But anyway, basically, it’s to help people where they are at at their particular time. The emotions come and go. But having said that, there is no research to show that there’s any significant mental health problems in these people. It’s normal responses to normal challenges.
Benjamin Bryant: And assisted reproduction can, of course, involve the use of donor sperm. This then means that the child’s biological father is different from the parent that raises them. So how do you counsel couples to deal with this when communicating with a child over time?
Miranda Montrone: That’s very interesting. So, when I started in the 90s, there was not routine counselling for donor. And then I said to the clinic director, I think we really should be talking about this. So historically, there even were people who said it’s just like blood? Now very much we know it’s definitely not just like blood. So, I would talk to, what at the time was heterosexual couples, who had a sperm problem. A lot of those sperm problems, by the way, are probably able to be fixed now with the treatment that’s known as ICSI (Intracytoplasmic sperm injection), where they can work with very, very small sperm numbers.
Miranda Montrone: But basically, traditionally, it was men with sperm problems. And so I would say to this couple as they were sitting there, “When do you think you should tell your child the truth about their genetic story?” And routinely, the poor fellow would say, “When do you think I should tell the child, I’m not the real father?” That word “real”. Just think about what does that mean to a man? And then they would suggest at the age of 15. And I’d go, “Nope, not 15. That’s a really bad time. That’s when they already hate you. Don’t pick that time.”.
Miranda Montrone: At the very beginning, when I started the counselling in the 90s, I thought, sort of school age is a good time. But in fact, earlier is even better. And now the evidence is that really straight away, from the very beginning, you tell the child about what’s happening. So, I now routinely tell people in donor and surrogacy that what they should do is chat with the baby as they’re changing the baby’s nappy. “Mummy and Daddy wanted to have a baby. They couldn’t do it. And this is how they had help.” The gay guys have to do, “Daddies can’t make babies. They have to get a woman. And this is where the egg and the uterus come from.” So, they chat with the baby.
Miranda Montrone: I know that sounds a bit, I don’t know. People think, “Why are we doing that?” They get used to telling the story. It’s also very good for the baby’s vocalisation skills in this day and age when they can be a bit distracted with screens and devices and everything. So basically, the mums and the dads just need to chat. “This is it. That’s how it happened.” And the pain settles inside them, so they could become comfortable with it.
Miranda Montrone: So, then they can say to other people, because you can’t tell the child “This is how you were conceived, but you can’t tell anyone.” That’s passing on a sense of some sort of shame or stigma to a child. You have to be able to calmly say to other people, we couldn’t have a baby the usual way. We had to have extra help. And we had two very big extra help. This is how it happened. And you can say it calmly and quietly and sensibly to people. So, the children are fine, by the way. No evidence with anything, but the children are being totally, totally fine, however, they were conceived.
Heather McKinnon: I think, Miranda, it’s one of the things you learn as a family lawyer when you’re acting for children is that their sense of identity is about who their psychological attachments are to. It just confirms that your mum and dad are who you know to be your mum and dad. All they need to know from when they’re tiny is these are the people who love me.
Miranda Montrone: Exactly. This all has changed over the last 20, 30 years. It used to be known as anonymous. Then it became an identifiable. And since 2010, as you would know, Ben and Heather. It’s now required to be registered on the central register in the Department of Health, the identifying details.
Miranda Montrone: However, now there’s the real curve ball, I suppose it is, online DNA testing is showing it’s a game changer. So, all people need to do is using a cotton wool bud thing in their mouth, send it off. I just recently got sent a thing in the mail for Black Friday costing $66. That is mind blowingly astounding. There was a time when DNA couldn’t be tested like this and now you can just pay $66 and they will give you information about your genetic connections. So, this is a whole game changer. The DNA testing. So back to the question about when you’re counselling people. There are actually quite a number of people out there that still may not know. And there was research done only, I don’t know, about 10, 15 years ago, where still with all of this advice, half of the offspring at the age of 10 did not know they were donor conceived. Nowadays, that’s really foolish. And so, when you’re counselling people now, you talk about it and say “You can’t not get around to it anymore.” You have to get around to it and sooner rather than later is the way to go.
Benjamin Bryant: So, Miranda, you were just talking about the children who are products of these arrangements. What about the sperm donor? The whole issue of anonymity has been blown apart since the advent of DNA testing. What are the implications for sperm donors?
Miranda Montrone: Yeah, it has changed hugely. Twenty-five, thirty years ago it was what was called anonymous. But even early before the DNA really exploded, even in the early 2000s, the clinics were aware and were starting to link up and set up voluntary databases. I was involved in setting up one at the Royal Hospital for Women, getting all their information together so that people could connect. So, there was already connecting happening. Since 2010, as I’m sure you’re aware, there’s now a requirement for people to be registered on a central register. But then, this has got to wait till children, the offspring are 18 unless there’s special circumstances. So, the blowing apart that you just mentioned is the fact that people can do the swab, the mouth swap, send it off. People are finding relatives all over the world and connections through all sorts of people. It’s as you say, it’s quite amazing. So basically, what it means, it’s open now. Any sort of sense that parents of children through donor don’t get around to telling their children because it’s too hard. They can’t do that anymore. It has to be open.
Benjamin Bryant: Well, thank you so much for taking the time to talk to us today, Miranda.
Miranda Montrone: It’s been my pleasure. And how interesting it’s been to talk about the subject with some lawyers as well as my ideas. I’m quite isolated usually.
Benjamin Bryant: And it has been a thrill for us as well. And thank you Heather, as always.
Heather McKinnon: It’s been really great, Miranda and Ben, to learn about this topic that affects so many Australians. And particularly Miranda, to have you share your expertise with everyone that enjoys this program.
Benjamin Bryant: And thank you to our listeners. We hope you found this podcast informative. And as always, we will put the links to any reports or services mentioned in today’s show into the show notes for this episode. You can find the detailed show notes on our website: bryantmckinnon.com.au.
Benjamin Bryant: Next month, I will be on holiday and Heather will be running the show. She’s going to take you through her thoughts on how to keep divorce costs down and still get a good outcome. If you’ve got a story you’d like to share about divorce costs blowing out, or if you have any specific questions about managing the costs of a divorce, please send them via Facebook Messenger or by emailing familymatters@bryantmckinnon.com.au.
Benjamin Bryant: Good bye for now and hope to have you ears again next month.