Surrogacy is one of the most heart-warming parts of practising in family law, however it is also an area that can be fairly unfamiliar and a little bit daunting to people. Here are some fast facts to start you off on your surrogacy journey.
- What is the terminology? The people seeking to become parents are referred to as the “intended parents”. The surrogate or person who gives birth to the child is referred to as the “birth mother”. If the birth mother is married or has a de facto partner then her partner is the “birth mother’s spouse” and collectively they are referred to as the “birth parents”.
- Commercial surrogacy is illegal in Queensland and indeed all Australian states. You can be charged with a criminal offence if you enter into a commercial surrogacy arrangement. This includes if there is any payment, reward or material benefit received by anyone as a result of entering into this agreement.
- A written surrogacy agreement must be entered into before the child is conceived.
- Even though there may be a surrogacy agreement in place, the child will be presumed to be the child of the birth parents until such time as a parentage order is made. The intended parents can apply for a parentage order when the child is between 28 days and six months old and the child is in their care.
- In order to enter into a surrogacy agreement in Queensland, all parties need to be over 25, including the intended parents, the birth mother and the birth mother’s spouse if the birth mother is in a relationship.
- All parties (that is, birth parents and intended parents) must attend compulsory counselling prior to entering into the agreement and after the child is born.
- The parties may agree to any type of conception including IVF, artificial insemination, self-insemination or natural conception.
- It is illegal to advertise surrogacy in Queensland. This includes advertising to find a surrogate or to be a surrogate.
- The intended parents can reimburse the birth mother’s reasonable surrogacy costs – this includes medical expenses, counselling costs, legal costs and a number of other expenses that are directly related to the pregnancy. These are normally outlined in the surrogacy agreement.
- In Queensland there needs to be a social or medical reason for the surrogacy. A medical reason includes that the intended parent has a medical disorder that makes it impossible or unacceptably dangerous to carry a baby. A social reason could include two males who are in a same sex relationship.
The web of surrogacy can be complex, however it is worth navigating as a means of starting the rewarding journey of parenthood.