What is a surrogacy arrangement and what law applies?
In Australia, surrogacy arrangements are governed by state law rather than federal law. In Queensland, the Surrogacy Act 2010 (Qld) (“Surrogacy Act”) applies to all surrogacy arrangements within Queensland.
The paramount principle of the Surrogacy Act is to ensure that the wellbeing and best interests of a child born through a surrogacy arrangement are at the forefront of any arrangement.
The Surrogacy Act contains the following definitions of parties involved in a surrogacy arrangement:
- ‘Birth Mother’ is defined as the women who agrees to become pregnant with the intention that the child will be treated as a child of the other person (intended parents) and will relinquish custody and guardianship to the other person (intended parent) (see section 7(a) and section 8 of the Surrogacy Act)
- ‘Intended Parent’ or ‘Couple’ are defined as the parent, or couple, that intend to receive and raise the child following birth (see section 9 of the Surrogacy Act).
A surrogacy arrangement is where a woman (the birth mother) and the intended parent/s agree that the birth mother will become pregnant with a child on behalf of the intended parents. Following the birth, the birth mother gives the baby to the intended parents.
During the pregnancy, the birth mother has the same rights has any other pregnant women to manage her pregnancy and birth in a way she desires, regardless of the agreement between the parties.
Costs of Surrogacy Arrangements
Under the Surrogacy Act, commercial surrogacy arrangements, where a payment or other material benefit is made for entering into a surrogate arrangement, are unlawful, and remain unlawful regardless of whether the arrangement was made within Queensland or in another jurisdiction, including overseas jurisdictions.
However, altruistic surrogacy arrangements, where the birth mother receives no payment or other material benefit for the pregnancy, are lawful. Whilst altruistic surrogacy arrangements do not allow for a material benefit to be retained by the birth mother, the birth mother is entitled to be reimbursed for the costs of surrogacy, including:
- Reasonable medical costs related to the pregnancy and birth;
- Counseling and legal costs associated with the surrogacy arrangement;
- Lost income because of leave taken during pregnancy or following birth; and
- Reasonable travel expenses incurred during the surrogacy arrangement.
The obligation to pay the above outlined expenses to the birth mother can be enforced by the birth mother, unless she chooses not to relinquish the child to the intended parents.
Parentage Orders and Requirements After Birth
At law the birth mother of a child (and her partner if she has one) are the legal parents of a child, regardless of whether that child was born pursuant to a surrogacy arrangement or not. The Surrogacy Act provides a mechanism, being a Parentage Order, for the birth parent/s and intended parent/s to transfer parentage, so that the intended parents become legally recognised as the child’s parents.
A Parentage Order is sought through the Children’s Court after the birth of the child.
In making an application for a Parentage Order, the parties need to file sworn affidavits from the following people to demonstrate that the requirements of the Surrogacy Act have been met:
- The birth mother;
- The birth mother’s spouse (if any);
- The intended parents;
- Medical practitioners;
- Counsellors; and
- Legal advisors.
Additionally, the parties must file a surrogacy guidance report provided by an independent counsellor that has interviewed all the parties and discussed with them the social and psychological implications of the making of a parentage order and openness/honesty about the child’s birth parentage for the wellbeing and best interests of the child.
When considering whether to make a parentage order or not, the Court must be satisfied the following requirements have been met (see section 22 of the Surrogacy Act):
- The proposed parentage order is for the wellbeing and best interests of the child;
- All parties (the birth parents and intended parent/s) have consented to the parentage being transferred to the intended parents;
- There is evidence of a medical or social need for the surrogacy arrangement;
- The surrogacy arrangement was made:
- After the parties obtained independent legal advice about the surrogacy arrangement and its implications;
- After the parties obtained counseling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications;
- Before the child was conceived;
- In writing and signed by all parties.
- The child:
- Is between 28 days and 6 months old;
- Is residing with the intended parent/s;
- Has been residing with the intended parent/s for at least 28 days prior to the application being made; and
- Must be residing with the intended parents at the time of the hearing.
- All parties are over the age of 25;
- The intended parents reside in Queensland;
- A surrogacy guidance report supports the making of the proposed parentage order; and
- Is not a commercial surrogacy arrangement.
If the Children’s Court does not make a Parentage Order because one of the requirements of the Surrogacy Act are not met, then the intended parents can apply to the Federal Circuit and Family Court of Australia for parenting orders in relation to the child. Whilst a parenting order can provide the intended parent/s with parental responsibility, it is unable to transfer parentage from the birth parent/s.
Enforceability of Surrogacy Arrangements
Pursuant to section 15 of the Surrogacy Act, surrogacy arrangements are not enforceable, meaning that either the birth mother or intended parent/s can withdraw from the arrangement at any time before the Court makes a parentage order.
If the birth mother decides to keep the child, by law the intended parents are unable to enforce the surrogacy arrangement. Similarly, the intended parents may decide they do not wish to permanently care for the child.
As surrogacy arrangements are not enforceable, it is important that all parties obtain proper legal advice and counselling (as required by the Surrogacy Act) prior to entering into any arrangement to limit the chances of one party withdrawing from the arrangement.
If you want to enter into a surrogacy arrangement
Prior to entering into a surrogacy arrangement, you must seek legal advice from a qualified legal practitioner, so that you can fully understand your rights, obligations and implications of a surrogacy arrangement.
The intended parent/s are able to obtain advice from the same legal practitioner, however that legal practitioner must be separate and independent from the legal practitioner that provides advice to the birth mother and her spouse.
If you’re considering entering into a surrogacy arrangement, speak to one of our family lawyers today to discuss whether it is right for you!
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