How does surrogacy work in Australia?
An increasing number of couples are turning to the use of a surrogate to overcome fertility issues. This is particularly helpful for heterosexual couples. Having someone else carry your child is a daunting prospect so how can you ensure a smooth process? What are your rights? What steps do you need to follow to best protect yourself, your partner and the surrogate? Don’t worry, we’re here to help you understand the surrogacy process and relevant surrogacy laws.
Is surrogacy legal in Australia?
You may be considering using the services of a surrogate to bring your child into the world however are concerned about the legality of a surrogate. Surrogacy arrangement are legal in Australia.
It is illegal though to enter into a commercial surrogacy arrangement.
What is altruistic surrogacy?
An altruistic surrogacy is a surrogacy arrangement where the birth mother (sometimes called the gestational carrier) does not receive payment for carrying your child. Only altruistic surrogacy arrangements are legal in Australia.
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What is a commercial surrogacy arrangement?
To ensure your surrogacy arrangement would not be considered illegal, you need to know what a commercial surrogacy arrangement is.
A surrogacy arrangement is commercial if a person receives a payment, reward or other benefit (other than the reimbursement of the birth mother’s surrogacy costs) for the person agreeing to enter into the surrogacy arrangement.
While the birth mother is entitled to reimbursement of any surrogacy costs, they cannot receive any other funds from the intended parents.
An example of surrogacy costs which can be paid to surrogates are as follows:
- reasonable medical cost for the birth mother relating to trying to become pregnant, pregnancy or birth for example, doctors’ appointments
- any insurance premiums payable for health, disability or life insurance that are only required because of the surrogacy arrangement
- reasonable costs of counselling associated with the surrogacy arrangement (both before and after the birth)
- reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage
- the value of the birth mother’s actual lost earnings because of leave taken for a period of 2 months during which a birth happened or was expected to happen or for any other period during the pregnancy when the birth mother was unable to work on medical grounds
- other reasonable costs such as travel expenses
Additional sums of money outside of the descriptions provided above may result in your surrogacy arrangement being deemed illegal.
If the child is born as a result of a commercial surrogacy arrangement, the Childrens Court will not be able to make a parentage order.
The Family Court may be able to make parenting orders under the Family Law Act 1975 (Cth) however, whilst the Family Court will be able to appoint parental responsibility to the parents, there will be no change of parentage (so the surrogate will still be seen as the child’s parents legally).
What is a surrogacy agreement and what should it include?
A surrogacy agreement is an agreement entered into by the birth mother and her partner (if she has one) as well as the intended parents. The agreement will eventually be included with the intended parents application to the court for parentage orders.
A surrogacy agreement should not be entered into until:
- the birth mother (and her partner if applicable) receives independent legal advice
- the intended parents receive independent legal advice
- the birth mother (and her partner if applicable) receives counselling
- the intended parents receive counselling
Importantly, a surrogacy arrangement is not legally enforceable.
Despite this, an obligation to pay the birth mother her surrogacy costs (see below for what is legal) will be enforceable provided the child is born and the birth mother gives up the child.
What are your rights during the pregnancy?
It is important to note that the birth mother has the same rights to manage her pregnancy and birth as any other pregnant woman. This means that even if the surrogacy agreement states the birth mother is to manage the pregnancy in a certain manner, this is not legally binding.
What are your rights after the birth?
It is important to note that at law, the birth mother and her partner (if she has one) are considered the legal parents of the child.
For you to be considered the legal parents of the child, you need to apply to the Childrens Court for an order which states you are the legal parent of the child (called parentage orders).
In Queensland, you cannot apply to the Childrens Court for orders about parentage until the child is born. We will go through when you can apply and what you require below.
Who can apply for parentage orders?
Unfortunately, under the Surrogacy Act 2010 (Qld), not everyone is entitled to apply for parentage orders.
To see whether you are able to apply for parentage orders, see the chart below.
Eligible woman means: A woman who is unable to conceive or, if able to conceive, is likely to be unable to give birth or is likely to have her health significantly affected by a pregnancy or birth. Women who are likely to conceive a child affected by a genetic condition or disorder or a child whose health is likely to be significantly affected by a pregnancy or birth will also be considered an eligible woman.
When can you apply for orders?
An application for a parentage order may be made to the Childrens Court when the child is between 28 days and 6 months old.
If the child is older than 6 months, you will need to apply to the court for leave to seek parentage orders and this is not always granted. You should try and bring your application within time.
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Documents you will need to file with your application
When filing your application for a parentage order, make sure you include the following:
- a copy of the child’s birth certificate
- a copy of the surrogacy arrangement
- an affidavit (which is a written and sworn legal statement) from the applicant
- an affidavit from the birth mother
- an affidavit from the birth mother’s spouse (if any)
- an affidavit from another birth parent (if any)
- for the applicant, the birth mother and the birth mother’s spouse (if any)(so potentially three separate affidavits)—an affidavit from a lawyer who has provided legal advice before the surrogacy arrangement was made
- an affidavit from a qualified counsellor who gave counselling to the birth mother, the birth mother’s spouse (if any) and the applicant before the surrogacy arrangement was made
- an affidavit by an independent counsellor who interviewed the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant verifying a surrogacy guidance report (see description below)
- for each applicant who is a woman, an affidavit from an appropriately qualified medical practitioner verifying a report prepared by the medical practitioner as to why the applicant is an eligible woman
Surrogacy Guidance Report
A surrogacy guidance report must be prepared by a counsellor and outline the following:
- that the counsellor interviewed the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant
- the date or dates of the interviews
- the counsellor’s opinion as a result of the interviews relevant to the application, for example, about the following matters—
- each interviewed person’s understanding of—
- the social and psychological implications of the making of a parentage order on the child
- openness and honesty about the child’s birth parentage being for the wellbeing, and in the best interests, of the child
- the care arrangements that the applicant has proposed for the child
- whether the making of a parentage order would be for the wellbeing, and in the best interests, of the child
- each interviewed person’s understanding of—
For the court to make the orders being sought, the surrogacy guidance report must support orders being made changing the parentage of the child.
Whether your application will be successful
Applications in relation to surrogacy arrangements are dealt with in a similar way to those dealt with under the Family Law Act 1975 (Cth).
What the court considers most important is the wellbeing and best interests of the child born as a result of the surrogacy arrangement, both through childhood and for the rest of the child’s life.
As a guide, the judge aims to ensure a child born as a result of a surrogacy arrangement is to be cared for in a way that:
- ensures a safe, stable and nurturing family and home life
- promotes openness and honesty about the child’s birth parentage
- promotes the development of the child’s emotional, mental, physical and social wellbeing
To be successful, your application can also only be made after the child has lived with the applicant for at least 28 consecutive days before the day the application was made and is living with the applicant at the time of the hearing. Furthermore, the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant just consent to the making of the parentage order at the time of the hearing.
Name of child
Your application can include an order that the name of the child be changed. It is common for orders to include that the child’s surname be changed, Once the order is made, the child’s names are the names the court approves for the child in the parentage order.
If you are thinking about pursuing a surrogacy arrangement, you should first seek independent legal advice. We recommend making an appointment with our office as soon as possible. We would love to help you with your surrogacy journey.