The changing face of the Australian family brings with it a change in the ways that people are having their family.
Enter surrogacy. To work with people as they grow their family is one of the most heart-warming experiences you can ever have.
Surrogacy is when someone else (the surrogate or birth mother) carries a baby for another person (the intended parent/s) with the intention that the parentage of the child will ultimately fall to the intended parent/s.
In order to enter into a surrogacy arrangement, you must have a medical or social need to do so. If one of the intended parents is a woman who is seeking to enter into a surrogacy arrangement on medical grounds, they will be required to provide evidence of this from medical professionals. Men in a same-sex relationship naturally satisfy the need for surrogacy on social grounds.
As you would expect the surrogacy process must be entirely consensual. Therefore the surrogate (and her partner if applicable), as well as the intended parent/s, must firstly agree to enter into a written surrogacy arrangement prior to conception.
Surrogacy is a complex area of the law, especially so in Australia and it is important to seek legal advice early on to ensure that you meet all of the legal requirements so that the journey is that much sweeter by knowing that all of the legal stuff is taken care of.
A surrogacy agreement generally covers off on:
- The method of conception, such as IUI, IVF etc;
- What surrogacy/birth costs are going to be paid by the intended parent/s and the method for such payment;
- Any medical examinations/tests that are to be undertaken by both the birth parent/s and intended parent/s prior to the conception;
- What happens during the birth, who is present, what role each person plays and what happens after the child is born;
- Any agreement reached in regards to how the birth mother conducts the pregnancy; and
- All of the areas required to apply for a parentage order following the birth of the child.
Unlike in the US, India and some other countries around the world, commercial surrogacy, being where a surrogate receives payment or other benefit for undertaking the surrogacy, is a criminal offence in Queensland (and all states in Australia). All surrogacy arrangements are required to be altruistic and as such these often occur between close friends or family members.
The second part of the surrogacy journey involves applying to the Children’s Court for the transfer of the parentage of the child after the child is born. Once a parentage order is made, this is legally binding and transfers the legal parentage of the child from the surrogate to the intended parents. At this time the intended parents may apply to have the birth certificate amended to reflect this.
You can apply for a parentage order after the child is born and when the child is aged between 28 days and 6 months. When filing this application you are required to provide a number of documents, including a copy of the Surrogacy Agreement and supporting affidavits.
Interestingly a surrogacy arrangement alone is not legally enforceable. This means that any of the parties can change their mind after entering into the surrogacy arrangement and the child has been conceived, however prior to the parentage order being made.
If any party changes their mind in regards to proceeding with the surrogacy arrangement prior to the parentage order being made, then the agreement cannot be legally enforced. Naturally these circumstances are the exception, rather than the rule. Generally people do proceed with applying for a parentage order once they have entered into a surrogacy arrangement.
The Queensland Surrogacy Act is very prescriptive and it is important that all requirements are met before entering into a surrogacy arrangement. If any of the elements are not met, this can be problematic when applying for the transfer of parentage of the child down the track.
Some of the requirements to apply for a parentage order in Queensland are as follows:
- The parentage order must be for the wellbeing and in the best interest of the child;
- There is evidence of a medical or social need for the surrogacy arrangement;
- That there was a surrogacy arrangement entered into between the parties after such time as they all obtained independent legal advice and counselling from an appropriately qualified counsellor and before the child was conceived;
- That the surrogacy arrangement is not commercial;
- The birth mother and her partner (if any) and the intended parents must be at least 25 years of age when the surrogacy arrangement was made and the intended parents live in Queensland;
- That a surrogacy guidance report is prepared by an appropriately qualified counsellor which supports the making of the parentage order.
We can offer a fixed fee service for preparation of Surrogacy Agreements.
As many of these requirements need to be met prior to entering into the surrogacy arrangement, it is essential that you obtain legal advice early, if you are considering surrogacy as an option for your family. Contact our surrogacy lawyers Brisbane today to find out about a fixed-fee, no obligation initial advice consultation.
Related Surrogacy News
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.