As the social fabric of Australia is ever-changing, family law has its work cut out for it in keeping up!
Advances in modern technology has meant there are now many options for people including same-sex couples and single people wanting children but for many reasons cannot conceive their own. One of these options includes surrogacy.
Many people suffer under the misapprehension that surrogacy is illegal in Australia. That is not quite correct, but requires some qualification:
“Commercial” surrogacy arrangements (ie money exchanging hands) are illegal in Australia, however, altruistic (no monetary consideration) arrangements are not.
Surrogate children are provided for in the Surrogacy Act (NSW) 2010 & The Family Law Act 1975.
Parentage Orders under the Surrogacy Act:
The Court may make a parentage order in relation to the child of a surrogacy arrangement which is defined as “an arrangement under which a woman agrees to become or to try to come pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons”.
The following requirements are mandatory regarding any application for a parentage order:
- Applications must be made not less than 30 days and not more than 6 months after the child’s birth (or for “pre-commencement surrogacy arrangements”*, within 2 years after the commencement of the Act (commencement is: 1 March 2011).
- Application must be supported by a report prepared by an Independent Counsellor.
- The best interests of the children is the paramount consideration for the Court when making a parenting order.
- The surrogacy arrangement must be altruistic and agreed before conception.
- The intended parent(s)** must be a single person or member of a couple (includes same sex couples and de facto) and each must be at least 18 years old at the time of entering into the arrangement.
- The birth mother must have been at least 25 years old when entered into surrogacy arrangement, or for Pre-Commencement Arrangement, it is sufficient that birth mother was at least 18 years old.
- The birth mother and her partner (if any) must freely consent to the parentage order, unless they cannot be located, die or lose capacity to consent.
There are other requirements which must be satisfied (but these can be waived by a court in exceptional circumstances) including:
- The surrogacy agreement must be in writing.
- The child’s birth must be registered and certain aspects of the arrangement must be registered on the donor registry.
- The child must be living with the intended parent(s) in NSW.
- All parties must have had the counselling and legal advice.
- There must be a social or medical need for the surrogacy (male same-sex couples automatically satisfy this condition) (NB – this precondition does not apply to a pre-commencement surrogacy arrangement).
*“Pre-commencement Surrogacy Arrangement” is an arrangement entered into before the commence of this Part (s.15(2)) and even if it was rendered void by a law in force before the commencement of this Section (as if it had not been rendered void) (s.15(3)) and the Court may make a parentage order in relation to a surrogacy arrangement whether it was entered into before or after the commencement of the Act.
** “Intended Parent” means the person(s) to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement.
Since the commencement of the Surrogacy Act, various other Acts have been amended to include and make provision for children born as a result of surrogacy arrangements, such as the Births, Deaths & Marriages Registration Act 1995 with respect to the registration of parentage orders and issuing of birth certificates (NB – it is not included on the birth certificate that the child is born as a result of a surrogacy arrangement, however, a notice is recorded on the Registry indicating that further information is available upon request). The Succession Act 2006 has been amended to enable surrogate children to be included for the purposes of distribution on an intestacy.
Once the Court has made a parentage order referred to above, then for the purposes of the Family Law Act, the surrogate child is in all respects, the child of the parent(s) and not the birth mother (s.60HB).
If you require family law advice, please do not hestiate to contact our friendly family law team.