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Surrogacy


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Peter-Magee

Surrogacy is a form of assisted reproductive technology where a woman (the ‘surrogate’ or ‘birth mother’) carries a baby through pregnancy on behalf of another person or couple.

When the surrogate gives birth, the baby is placed in the care of the intended parent(s). This process takes place by creating an embryo using and an egg and sperm produced by the intending parent(s), and then transferring that embryo into the surrogate’s uterus.

Whilst it is uncommon, the surrogate can have a genetic link to the child in circumstances where her eggs are used to conceive the child.


NSW LEGAL FRAMEWORK:

The Family Law Act 1975 (Cth) is Commonwealth legislation that deals with the parenting arrangements for children. Since surrogacy also concerns parentage, it is referred to in a specific section of the Family Law Act 1975 (Cth), being section 60HB. This section states:

  • If a court has made an order under a prescribed law of a State or Territory to the effect that:
    • a child is the child of one or more persons; or
    • each of one or more persons is a parent of a child;
  • then, for the purposes of this Act, the child is the child of each of those persons.

  • In this section:
  • "this Act " includes:
    • the standard Rules of Court; and
    • the related Federal Circuit Court Rules.

The laws governing the process of surrogacy however are state based and each state in Australia has their own legislation. Therefore, parties considering surrogacy should be familiar with the laws that apply in their state.

In NSW, surrogacy is governed by the Surrogacy Act 2010 (NSW) (“the Act”) and matters are dealt with by the Supreme Court of NSW. The current common law in Australia allows for the presumption to be made that when a woman gives birth to a child, she and her partner are parents of that child. Section 39 of the Surrogacy Act 2010 (NSW) allows for a parenting Order to be made when a surrogacy arrangement has been entered into. This then allows for the operation of section 60HB under the Family Law Act 1975 (Cth).

The parenting Order pursuant to section 39 of the Act is made by way of application to the Supreme Court of NSW. Once made, the Supreme Court will direct the Registrar of Births, Deaths and Marriages to amend the child's birth certificate to reflect that the intended parents, not the birth parents, are the child’s legal parents. The application to the Supreme Court needs to be made not less than 30 days and not more than 6 months after the child's birth.

A Parentage Order will only be made by the Supreme Court in circumstances where the birth mother provides her consent. There is no legal restriction on the child finding out about their surrogate mother or the “arrangements” of his or her birth.

THE LEGAL PARAMETERS TO PARENTAGE PURSUANT TO SURROGACY ACT:

Division 4 of the Act sets out the preconditions the surrogacy arrangement must reflect in order for a parentage Order to be made. Both the intended parents and the birth parents must adhere in order the conditions to ensure the agreement is valid. These requirements include:

  • Surrogacy arrangement must be altruistic, that is, not financial benefit can come to either party as a result of the surrogacy.
  • The intended parent must be single person or member of a couple (defacto or married).
  • In circumstances where the arrangement is entered into post-conception and birth, if the child of the agreement is of significant maturity, the age and wishes of child must be considered when making the parentage Order.
  • The birth mother was at least 18 years old when she entered into the surrogacy arrangement.
  • Each intended parent must have been at least 18 years old when he or she entered into the surrogacy arrangement.
  • If an intended parent was under 25 years of age when the surrogacy arrangement was entered into, the Supreme Court must be satisfied that the intended parent is of sufficient maturity to understand the social and psychological implications of the making of a parentage order.
  • The intended parent be resident in NSW and the child must be living with the intended parents.
  • The surrogacy arrangement must be in writing.
  • The birth parents and the intended parents must obtain counselling and legal advice on the surrogacy agreement.
  • Medical or social need for surrogacy arrangement must be demonstrated. Such a need is demonstrated if:
    • there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman, or
    • there are 2 intended parents under the surrogacy arrangement and the intended parents are:
      • a man and an eligible woman, or
      • 2 men, or
      • 2 eligible women.
    • The Act defines an "eligible woman" as a woman who is:
      • is unable to conceive a child on medical grounds, or
      • is likely to be unable, on medical grounds, to carry a pregnancy or to give birth, or
      • is unlikely to survive a pregnancy or birth, or is likely to have her health significantly affected by a pregnancy or birth, or
      • if she were to conceive a child:
        • is likely to conceive a child affected by a genetic condition or disorder, the cause of which is attributable to the woman, or
        • is likely to conceive a child who is unlikely to survive the pregnancy or birth, or whose health would be significantly affected by the pregnancy or birth.

However, despite taking these steps, if the birth mother changes her mind while pregnant, or after giving birth, about the surrogacy, the Surrogacy Agreement becomes null and void. The intended parents cannot take any legal action against the birth mother (the surrogate) and she keeps the child. Essentially, the contract is not enforceable against the surrogate mother as she is legally able to change her mind.

COMMERCIAL SURROGACY:

Surrogacy in Australia is altruistic. Entering in to a commercial surrogacy arrangement is illegal in every State and Territory in Australia. Commercial surrogacy is defined in section 9 of the Act as follows:

  • For the purposes of this Act, a surrogacy arrangement is a commercial surrogacy arrangement if the arrangement involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person:
    • agreeing to enter into or entering into the surrogacy arrangement, or
    • giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or
    • consenting to the making of a parentage order in relation to a child of the surrogacy arrangement.
  • However, a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee, reward or other material benefit or advantage provided for is the reimbursement of a birth mother’s surrogacy costs.

Essentially, any surrogacy arrangement that involves a payment to the birth mother for her role as a surrogate will be considered a commercial arrangement. In NSW, the pursuant to section 8 of the Act, maximum penalty for entering into a commercial surrogacy agreement is 2,500 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.

However, in NSW the Act provided that payments can be made in relation to the surrogacy for the following reasons:

  • In trying to become pregnant, including any medical costs, or travel and accommodation costs;
  • During the pregnancy, including pre-natal and post-natal medical costs, travel and accommodation costs, additional health or life insurance obtained by the surrogate (that the surrogate wouldn’t have gotten if she wasn’t pregnant), reasonable costs incurred with respect to the child, or the surrogate’s unpaid leave for up to 2 months.
  • In relation to legal advice, counselling, or being involved in court proceeding.

These costs must be provable, and the intended parents must have receipts for the expenses.



where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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