Surrogacy occurs when a woman agrees to bear a child for another person or persons, who will become the child’s parent or parents after its birth. The laws regarding surrogacy in Australia vary from state to state. This article deals with surrogacy laws in Queensland only.
Commercial surrogacy (where a person advertises for, or to be, a surrogate) is illegal in most parts of Australia. It is an offence for residents of Queensland to enter into commercial surrogacy arrangements, even if those arrangements have been entered into outside of Australia.
Penalties for engaging in commercial surrogacy arrangements can include a fine and/or imprisonment.
Altruistic surrogacy (where a woman agrees to bear a child for someone else without receiving a financial benefit) is not illegal in Queensland. The procedures for the transfer of parentage once a child is born of a surrogacy arrangement in Queensland are outlined in the Surrogacy Act 2010. The procedures for the alteration of the birth register are outlined in the Births, Deaths and Marriages Registration Act 2003.
The intended parent/s of a surrogate child can be married or de facto (same or different sex) or single, but must be over 25 years of age (unless exceptional circumstances apply). The terms of the Surrogacy Act 2010 apply regardless of whether the fertility doctor and/or surrogate are outside of Queensland, provided the intended parents live in Queensland.
Requirements for a surrogacy agreement
The Surrogacy Act 2010 outlines the requirements for a surrogacy agreement, including:
- The agreement must be in writing, executed before conception, and relate to an altruistic arrangement;
- There are to be no payments other than to reimburse the birth mother for her medical, counselling, legal, travel and accommodation costs or (limited) loss of earnings incurred as a result of the surrogacy; and
- All parties, including the surrogate and her partner, and the intending parents must obtain independent legal advice and counselling.
Surrogacy agreements are unenforceable, save for the birth mother recovering her expenses.
Until a parentage order is made, the surrogate (and if relevant, her partner) are the parents of the child.
Once a child is born of a surrogacy arrangement, the intended parents can apply to the court for a parentage order. The requirements for making a parentage order are:
- That the child’s birth should be registered by the surrogate and if relevant, her partner;
- A report from a counsellor must be obtained;
- The order must be in the child’s best interests and for their wellbeing; and
- The surrogacy agreement must be consensual, relate to altruistic surrogacy and be entered into before the child was born.
In addition to the above, the court must ensure the following:
- The child has lived with the intending parents for at least 28 days;
- The child should be aged between 28 days and 6 months;
- That there is evidence for the medical or social need for the surrogacy;
- That all parties have been legally advised and obtained counselling before entering into the arrangement;
- That the Agreement is in writing and signed by all parties;
- That the guidance report supports the making of the order; and
- The parties consent to the making of the order.
The court has the discretion to dispense with the above requirements only in exceptional circumstances:
Once a parentage order is made by the court, the child’s birth certificate can be amended.
If the requirements outlined in the Surrogacy Act cannot be satisfied, the state courts cannot make a parentage order. In this case, the intended parents could seek a parenting order under the Family Law Act 1975 for parental responsibility for the child (which relates to the ability to make decisions for major long term decisions for the child), but such an order would not transfer parentage in the same way as an order from the state courts.
Who is a parent?
In addition to the state-based requirements, the Family Law Act 1975 also applies to a surrogacy arrangement, in so far as defining who is a parent. In surrogacy arrangements, section 60HB of the Family Law Act 1975 provides a presumption of parentage in favour of the intended parents once they have obtained a transfer of parentage in the state they live in.
Despite commercial surrogacy arrangements being illegal, there have been occasions where the Family Court has made parenting orders in favour of intended parents following overseas commercial surrogacy arrangements. The court in these matters has had to balance the illegality of the commercial surrogacy arrangement and the best interests of the children which would not be met if their parents were imprisoned. In the matter of Ellison and Anor & Karnchanit  FamCA 602, Justice Ryan listed a number of factors at paragraphs 132 to 139, which should be considered in surrogacy cases including the appointment of an Independent Children’s Lawyer, the evidence that should be put before the court and the factors which should be considered by a family consultant in preparing a family report.
The interplay between state and commonwealth law relating to the parentage of children born of surrogacy arrangements is complex. If you are considering entering into a surrogacy arrangement, you should seek independent legal advice at the earliest possible opportunity to ensure that all of the legal requirements are met.
If you propose to enter into an international surrogacy arrangement, in addition to seeking independent legal advice, you should also seek advice from a migration lawyer/agent about the visa status aspects of your circumstances.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.