What is Surrogacy
Surrogacy is a term which conceptualises the idea that an eligible person or persons (“the intended parent/s”) can enter into an arrangement with a third party female (“the birth mother”) for the birth mother to become pregnant but the child be raised by the intended parent/s, as if it was conceived naturally to the intended parent/s.
The idea of surrogacy is becoming an increasingly popular option to those intended parent/s that want to be parents but for one reason or another are unable to conceive a child naturally.
The Law in Queensland
In Queensland, surrogacy is governed by the Surrogacy Act 2010 (Qld), however, children who are the subject to properly considered surrogacy arrangements, which are implemented in their entirety, are subject to the provisions of the Family Law Act 1975 (Cth) in the same way that a naturally conceived child is.
Enforceability of Surrogacy Arrangements
Whilst the Surrogacy Act makes provision for legal and legitimate surrogacy arrangements, they are not (save for some limited terms) enforceable in Queensland (neither party is “bound” by the terms). The surrogacy process is very much premised upon the consent and continued consent to a surrogacy arrangement until the end of the process by the birth mother and the intended parent/s. However, orders of the Court which are made as a consequence of a surrogacy arrangement being correctly implemented are binding (including parentage orders which are explained below).
By way of illustration, if a child is born and the birth mother no longer wants to transfer parentage to the intended parent/s then she is not obliged to, regardless of whether or not there is a surrogacy arrangement in place (and in that circumstance the intended parent/s may need to consider their rights under the Family Law Act). Likewise, if the intended parent/s no longer wish to assume responsibility for the child after the birth, then the birth mother retains parentage of the child.
The requirements for intended parent/s and birth mothers to successfully enter and complete a legal and legitimate surrogacy arrangement in Queensland are onerous.
It is important that any individual considering entering into a surrogacy arrangements seeks legal advice as soon as they begin considering their options.
Each party must have obtained independent legal advice prior to any order being made that transfers parentage of a child (“parentage order”).
Effecting the Transfer of Parentage
After 28 days following the birth of a child, the intended parent/s can apply to the Children’s Court for a parentage order.
A parentage order will only be made with the consent of the intended parent/s and the birth mother. In addition there are a number of onerous procedural and other requirements (including the preparation of a surrogacy guidance report) which must be fulfilled prior to a parentage order being made.
If a parentage order is made, the child is considered to be the child of the intended parent/s for the purposes of the Family Law Act.
If the intended parent/s do not apply for a parentage order within 6 months from the birth of the child, then they will need the leave of the Children’s Court to do so.
Can any intended parent/s or birth mother consent to a parentage order?
To obtain a parentage order, the Surrogacy Act imposes a number of requirements, including that both the birth mother and the intended parent/s have attained 25 years of age and that there is some basis as to why a surrogacy arrangement is desirable rather than a birth by way of natural conception.
It is important to realise that in Queensland, as well as in other states of Australia (NSW and the ACT), it is illegal to enter into a commercial surrogacy arrangement which is an arrangement where the birth mother makes a profit or is rewarded for giving birth to a child (although the birth mother is entitled to be reimbursed for reasonable costs in relation to a surrogacy arrangement in Queensland).
It is important to ensure prior to entering into any surrogacy arrangement, that legal advice is obtained to ensure that the terms of the surrogacy arrangement are not intruding on what is defined by the Surrogacy Act as a “commercial surrogacy arrangement” as penalties may apply.
Surrogacy arrangements offer a viable option for people who wish to have children but are unable to do so. They can produce fantastic outcomes for all involved, however, need to be managed with caution and with the assistance of sound legal advice.