In a classic case of how ‘not’ to enter into a surrogacy arrangement, the recent decision of Seto & Poon [2021] FamCA 288 has all the unfortunate facts you could think of. Then, just for good measure, throw in a lawyer behaving very badly indeed! 

A couple, Mr Seto and Ms Yue, wish to have a baby and undertake five unsuccessful IVF attempts. Ms Yue and a close friend, Ms Poon, discuss an arrangement whereby Ms Poon will act as surrogate, in exchange for assistance in her obtaining Australian residence. By giving birth to the child of an Australian Citizen (Mr Seto), Ms Poon can obtain a section 143 visa.

Ms Poon undergoes IVF treatment with Mr Seto and falls pregnant with twins. A document entitled ‘Agreement on Renunciation of Guardianship’ is written in Cantonese and signed by the parties. The Agreement provides that Ms Poon will ‘voluntarily give up custody of the children’ provided that Mr Seto pays IVF and medical costs, $50,000 to assist with her immigration application (plus half of any costs over $100,000 and acts as a financial guarantor), a $7,000 deposit and $4,500 towards Ms Poon’s tuition fees. To be clear, such an arrangement is illegal in Australia.

Disagreements then inevitably follow with Ms Poon threatening to withhold the twins unless monies are paid. Ms Yue is beside herself with anxiety. Enter a lawyer for Ms Poon who sends a lengthy letter of demand requiring the sum of $290,000 to be paid to Ms Poon by Mr Seto and Ms Yue.

Mr Seto and Ms Yue file a Court application seeking Orders that Mr Seto be declared the twins’ parent and father and that Mr Seto and Ms Yue have equal parental responsibility for the twins. Ms Poon and her husband withdraw from the proceedings. Mr Seto and Ms Yue are successful.  Ms Poon is declared the twins’ mother but there are no Orders for the twins to spend any time with her.

The Court refers Ms Poon’s lawyer to the New South Wales Police and the Office of the Legal Services Commissioner (LSC). Apparently, on finding out about the Police and LSC involvement, the lawyer suddenly left her employment and took the file with her. I think the lawyer can consider her career at an end.

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