Surrogacy

Surrogacy – International Surrogacy – Parentage Orders – Process – New South Wales – Sydney – Surrogacy Lawyers Sydney – International Family Lawyers

1. Introduction – Surrogacy and the Law

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. Obviously, this may not always be the case particularly when the birth mother is a surrogate mother.

For this reason the Surrogacy Act 2010 (NSW) allows for a Parentage Order to be made where a surrogacy arrangement has been entered into. This allows for an application through the Courts to be made to have this presumption rebutted. Each state and territory in Australia is responsible for this process and has their own laws dictating the process and rules around such.

It is important to obtain legal advice before commencing a surrogacy arrangement. Sarah Bevan Family Lawyers are specialist family lawyers based in Sydney and have extensive experience in surrogacy matters in New South Wales and internationally. We have been responsible for many applications to the Supreme Court of New South Wales but particularly for an application resulting in a landmark decision where a same-sex couple was registered as parents on their child’s birth certificate.

2. Altruistic Surrogacy and Commercial Surrogacy

   

Commercial surrogacy is where a commercial arrangement is entered into between the intended parents and the birth mother. This usually involves a payment in return for the surrogacy where the birth mother will gain a profit. Commercial surrogacy is illegal in most Australian states and territories and in many other countries.

By contrast altruistic surrogacy is where the birth mother volunteers to act as surrogate without payment for such. Reimbursement for certain expenses such as medical and legal expenses is however allowed. If you are unsure as to what is considered commercial payment you should discuss this with your lawyer.

3. International Surrogacy

International surrogacy is an altruistic or commercial surrogacy arrangement where the surrogate mother is in a country outside of Australia. These arrangements need to be entered into with caution as they may not fulfil the requirements for a grant of a Parentage Order in New South Wales or Australia. This may be for a numerous reasons including that the parties did not receive the requisite counselling or legal advice before entering into the arrangement, or that the arrangement is deemed a commercial surrogacy.

Additionally, it is currently an offence in New South Wales, the Australian Capital Territory and Queensland to enter into an international surrogacy arrangement with potential penalties of significant fines and terms of imprisonment.

This can all lead to a range of issues for the child and the intended parents. It is therefore strongly recommended that you seek independent legal advice before entering into an international surrogacy arrangement.

For more information on international surrogacy arrangements generally see the Australian Government Department of Immigration and Border Protection website or make an appointment with one of our specialist surrogacy lawyers.

4. Getting a Parenting Order

Under the Surrogacy Act 2010 (NSW) the intended parents of the child born through surrogacy should make an application through the Supreme Court of New South Wales for a Parenting Order. This needs to be done within 30 days after the birth of the child. If a Parenting Order is granted the intended parents gain full parenting rights and their names will appear on the child’s birth certificate.

To be eligible for a Parenting Order the following conditions usually have to be met:

• The surrogacy must have been altruistic.
• The birth mother must have been at least 25 years of age.
• All parties involved in the surrogacy need to have obtained legal advice and counselling.
• The birth mother needed to have provided informed consent prior to conception.
• The child needs to be living with the intended parents at the time of the application.

5. Effects of the Parenting Order

The effect of the Parenting Order is that the intended parents now appear as the parents of the child on the child’s birth certificate. They therefore have the right and the authority to make parenting decisions for the child including every-day decisions for the child and long term decisions such as where the child should attend school and most medical decisions.

6. Where to now?

If you are considering entering into a surrogacy arrangement you should first obtain legal advice to understand your rights and obligations. Should you have already entered into a surrogacy arrangement Sarah Bevan Family Lawyers can provide further advice and assist you in obtaining Parentage Orders to reflect you and your partner as parents of your child.

As Sydney’s Leading Surrogacy Lawyers we are able to provide advice on any questions you may have relating to surrogacy and family law in New South Wales and internationally.

This article is an introduction to potential legal issues associated with surrogacy. It is not intended as legal advice.