Are you considering surrogacy? If so, you will need a Surrogacy Agreement

Are you considering surrogacy? If so, you will need a Surrogacy Agreement

Are you considering surrogacy? If so, you will need a Surrogacy Agreement 1024 683 Dorter

If you and your partner want to have a child but are unable to conceive naturally, you may be considering the solution of surrogacy.

It is important to understand the legal process of surrogacy, and the parental repercussions of surrogacy before making this decision.

What is surrogacy?

Surrogacy is when a woman carries and gives birth to a baby (the surrogate mother) for another person or couple who want to have a child.

Under section 6 of the Surrogacy Act 2010 (NSW), the surrogate mother is defined as “the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy agreement.

The surrogate mother becomes pregnant through assisted reproductive technology (“ART”), most commonly, IVF.

Is surrogacy legal?

Altruistic surrogacy, which occurs without financial benefit to the surrogate mother, is legal in Australia.  It is usual for a surrogate’s medical bills and out of pocket expenses to be met by the intended parents, and this can be captured in a surrogacy agreement between the parties as ‘reasonable costs’.

Reasonable costs of the surrogate mother include:

  1. Reasonable medical, travel and accommodation costs;
  2. Health, disability or life insurance premiums that would not have been obtained but for the entering into of a surrogacy agreement;
  3. Any reasonable costs incurred in respect of the child, including medical costs, and
  4. Loss of earnings for a period of not more than 2 months during which the birth happened or was expected to happen and any other period during the pregnancy when the birth mother was unable to work on medical grounds.

Reasonable costs associated with entering into and giving effect to a surrogacy agreement include:

  1. Receiving counseling in relation to the surrogacy arrangement (mandatory requirement);
  2. Receiving legal advice in relation to the surrogacy arrangement or a parentage order arising out of a surrogacy arrangement, and
  3. Being a party to proceedings in relation to a parenting order, including reasonable travel and accommodation costs.

Commercial surrogacy, where payment is made to the surrogate mother for carrying the unborn child, is illegal in Australia.

What happens once the child is born?

Once born, the child will be registered as the child of the surrogate mother, even though she is not genetically related to the child.

The intended parents must establish the child’s ‘legal parentage’ to become the intended legal parents of the child. The intended parents will need to apply to the Supreme Court for a Parentage Order in the state where they live.  This application must be made not less than 28 days and not more than 6 months after the birth of the child. The Parentage Order transfers parentage from the surrogate mother to the intended parents.  Once a Parentage Order is made, the birth certificate is reissued with the new parents listed, replacing the surrogate mother.

How is a parentage order made?

To be eligible for a parentage order, the following preconditions must be met (however some preconditions are mandatory and others can be waived in exceptional circumstances):

  1. The order must be in the best interests of the child;
  2. The surrogacy arrangement must have been altruistic (not commercial);
  3. The surrogacy arrangement must be made pre-conception;
  4. The intended parent must be a single person or, if there are two intended parents, they must be a couple at the time of entering the arrangements;
  5. The child must be under 18 years at the time the order is made;
  6. The surrogate mother must be at least 25 years old when entering into the arrangement;
  7. The intended parents must be at least 18 years of age when entering into the arrangement;
  8. There must be a medical or social need for a surrogacy arrangement such as that the intended parent is unable to conceive a child, unlikely to be able to carry a pregnancy for medical reasons, unlikely to survive a pregnancy, that conceiving a child would likely result in a child with a genetic disorder;
  9. All affected parties must consent to the making of the order;
  10. The intended parents must be living in NSW at the time the application is heard;
  11. The child must be living with the intended parents at the time the application is heard;
  12. Surrogacy arrangement must be in writing and signed by the surrogate mother, her partner (if any) and the intended parents;
  13. All of the parties must have received counselling prior to signing the Surrogacy Agreement;
  14. Specified information must be provided for inclusion to the Director-General of the Department of Health, for entry in the central register (with information kept under Division 3 of Part 3 of the Assisted Reproductive Technology Act (2007);
  15. The birth of the child must be registered;
  16. All parties involved in the surrogacy arrangements must have obtained independent legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the Surrogacy Agreement, with the surrogate mother (and her partner if any) having received advice independent of that of the intended parents.

If you are considering being involved in a surrogacy pregnancy, or need advice following the birth of a child via surrogacy, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or hello@dorterfamilylawyers.com.  Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.

Bronwyn O’Loan
Senior Associate

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.