A relationship breakdown involving children can occasionally raise questions about the paternity of the child. Ultimately DNA testing will determine beyond any reasonable doubt who the child’s parents are, but other matters are taken into account before that DNA test is conducted. A child bor...
Are you considering having a child through surrogacy or have you yourself been asked to be a surrogate mother?
If the answer is yes, it is extremely important that you know your legal rights around surrogacy in Australia.
Definition of surrogacy
Surrogacy is a method of assisted reproduction that helps people start a family when they are otherwise unable to do so.
There are two types of surrogacy arrangements:
Gestational Surrogacy – is when the carrier of the child has no genetic connection.
Traditional Surrogacy – is when the child is related to the surrogate and was created using either the intended father’s sperm or a sperm donor.
An embryo is created using an egg and sperm given either by the intended parents or by donors. The embryo is artificially inserted into the surrogate’s uterus for the term of pregnancy and the baby is returned to the intended parents after the birth.
Surrogacy is a complex and time-consuming process which can include counselling, psychiatric assessment as well as legal advice. Surrogacy is not something that should be entered into without deep consideration and planning.
Is Surrogacy Legal?
In Australia, altruistic surrogacy is legal. Altruistic surrogacy is when the surrogate does not receive a financial benefit for the surrogacy. Whereas commercial surrogacy (receiving payment for being the surrogate) is illegal.
Whilst you will be expected to cover medical costs and any other out of pocket expenses, you cannot enter into a financial agreement beyond this.
The current Australian laws that pertain to surrogacy dictate that the woman that gives birth to a child & per partner are the lawful parents of the child regardless of genetics. This means that under Australian law, surrogacy agreements are not legally binding. Australian surrogacy law recognises that the legal transfer of parentage is the responsibility of the state/territory governments.
As a result, if you want to formalise surrogacy arrangements you will need to get a parentage order.
Parentage Orders – Get A Contract
Most state/territory laws on surrogacy regulate surrogacy arrangements in Australia and provide the means to transfer the legal parentage of children providing that the surrogacy arrangements meet any requirements that are set out in legislation.
Parentage orders or adoption will need to be set arranged in accordance with QLD laws. It is possible that a surrogate may change her mind and want to keep the child. This does not happen often thanks to the councilling and support services available to surrogate mothers, but it does happen from time to time so it is important to legally protect yourself from this happening.
To protect you in this scenario, we recommend having an MCG lawyer create a contract for your surrogacy. The contract will clearly set out your intentions before beginning the surrogacy process. The contract needs to be written, signed and witnessed so that it will stand up in court if required.
If yourself or a loved one is looking into surrogacy arrangements, we invite you to call us on (07) 5591 2222 or contact us regarding a free 30-minute initial consultation.