New surrogacy laws introduced in Queensland in June 2010 mean that altruistic surrogacy arrangements are now legal throughout Australia.
Tim Ryan - Director
What is surrogacy?
Surrogacy is an arrangement whereby a woman carries a pregnancy for another couple or person. Altruistic surrogacy simply refers to the fact that the birth mother receives no payment, reward or other material benefit or advantage as a result of the arrangement.
Is it legal?
Before June 2010, altruistic surrogacy was illegal in Queensland. Since the passing of the Surrogacy Act 2010 (Qld), several changes to surrogacy laws have occurred, including:
- It is no longer unlawful for parties to enter into an altruistic surrogacy arrangement.
- It is, however, unlawful for parties to enter into a commercial surrogacy arrangement (ie one which involves payment, reward or other material benefit or advantage).
- Surrogacy arrangements are unenforceable in that the birth mother or the intended parent/s may change their mind about relinquishing the child at any time before the court makes an order to transfer parentage.
- There is statutory provision for the reimbursement of reasonable costs incurred by the birth mother during the surrogacy.
- It is illegal to advertise for a surrogacy, as it is to receive fees for organising a surrogacy.
Who can enter into a surrogacy arrangement?
Any person, regardless of their relationship status, can be a party to a surrogacy arrangement. Whether a person is single or married, heterosexual or homosexual, there is no bar on who can enter into a surrogacy arrangement, so long as the arrangement is not a commercial one.
What are "reasonable costs" incurred by the birth mother?
Section 11 of the Surrogacy Act 2010 provides that reasonable costs incurred by the birth mother are those associated with any of the following:
- becoming or trying to become pregnant,
- a pregnancy or a birth,
- the birth mother and the birth mother's spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.
A birth mother's surrogacy costs may include:
- medical costs for the birth mother and/or the child,
- health, disability or life insurance premiums,
- counselling costs,
- legal costs, including those associated with transfer of parentage,
- the value of the birth mother's actual lost earnings because of leave taken, and
- any other reasonable cost associated with the surrogacy arrangement or the making of an order transferring parentage.
The Surrogacy Act 2010 gives specific examples of situations where reasonable costs have been incurred by the birth mother. The birth mother must be reimbursed of these costs, unless the birth mother changes her mind about relinquishing the child or consenting to a parentage order.
How is a parentage order obtained?
To transfer parentage of a child born as a result of a surrogacy arrangement, an application must be made to the Children's Court of Queensland no less than 28 days and no more than six months after the child's birth. In exceptional circumstances, the application may be made at a later time, with the court's leave.
The court will make a parentage order only if it is satisfied of all of the following matters:
- the proposed order will be for the wellbeing, and in the best interests, of the child,
- the child was residing with the applicant for at least 28 days before the application was made and is residing with the applicant at the time of the hearing,
- there is evidence of a medical or social need for the surrogacy arrangement,
- the surrogacy arrangement was made after the parties obtained independent legal advice, counselling from an appropriately qualified counsellor, and before the child was conceived,
- the surrogacy arrangement is in writing, signed by all parties, and is not a commercial arrangement,
- the birth mother and the birth mother's spouse (if any) were at least 25 years of age when the surrogacy arrangement was made,
- the applicant was at least 25 years of age when the surrogacy arrangement was made and is resident in Queensland,
- all parties consent to the making of the parentage order at the time of the hearing, and
- a surrogacy guidance report supports the making of the parentage order.
While not strictly necessary, an order transferring parentage is desirable as it creates legal certainty for the child and gives the intended parent/s legal status to make decisions on behalf of the child. Once a parentage order is granted by the court, the birth mother no longer has a legal parental relationship with the child, and the intended parent/s become the parent/s of the child to the exclusion of all others.
At what stage should legal advice be obtained?
It is a condition under the Surrogacy Act 2010 that the birth mother, the birth mother's spouse (if any) and the intended parent/s obtain legal advice before entering into a surrogacy arrangement. Surrogacy is a rather complex issue and it is prudent for those thinking about entering a surrogacy arrangement to obtain legal advice so that their rights and obligations under such an arrangement can be fully explained.
Discussing what is involved in a surrogacy arrangement, and the possible implications associated with one, with your solicitor will ensure you make an informed decision before embarking on the process. You may also be interested in finding out more about adoption or guardianship laws in your State, all of which your solicitor can advise you on.
How we can help
Quinn & Scattini Lawyers’ expert Family Law Team can assess your individual situation in accordance with the Act, provide expert guidance on what is involved in a surrogacy arrangement and any potential implications so you can make an informed decision. We also offer practical and experienced advice if appearing before the court is unavoidable. With over 40 years’ experience, Q&S’s Family Law Team are experts in the family law field. The team also boasts two Accredited Family Law Specialists.
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