More recent publicity surrounding a number of celebrity surrogacy arrangements has highlighted the role of Surrogacy in allowing infertile couples the opportunity to share in the joys of parenting.
Surrogacy is effectively the act of a woman carrying a child to term with a view to surrendering care of that child to another party following his or her birth. A child born of surrogacy may be biologically the child of his or her intended parents, the child only of the intended father, or not biologically related to either intended parent.
Prior to 1 June 2010, surrogacy was illegal in any form in Queensland, this included both commercial surrogacy (which involves payment) and altruistic (or non-commercial) surrogacy.
Following the introduction of the Surrogacy Act 2010 (Qld), from 1 June 2010 Queenslanders are now at liberty to enter into altruistic surrogacy agreements where certain very specific conditions are met.
Whilst specific and detailed legal advice is required before you contemplate such an agreement or conception, some important aspects of the new law include:
- Intended parents can be married, in a de facto relationship (including same sex relationship), or even a single person;
- There must be evidence of medical or social need for the surrogacy;
- The Agreement must be made before the child is conceived;
- Independent legal advice and appropriate counselling prior to conception for all parties is also a must;
- The Agreement must be in writing;
- The intended parents must be residents of Queensland;
- All parties must be at least 25 years of age when the Agreement was made; and
- The reimbursement of a birth mother’s reasonable expenses associated with the surrogacy is permitted under an Altrustic Surrogacy Agreement.
The Act allows the parties to the Agreement to make application to the Court following the birth of the child in order to seek the transfer of parentage from the birth parents to the intended parents.
The most important thing to keep in mind is that a Surrogacy Agreement is not enforceable. For this reason, it does pose a considerable risk to both birth parents and intended parents, and should be the subject of careful consideration.
The information contained herein is not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations.