Surrogacy – An Alternative To Creating Families

Date: Jun 17, 2009
Document Type: Article

Surrogacy is an arrangement whereby a couple wishing to have a child (“the intending parents”) commission a woman, whether partnered or otherwise (“the surrogate mother”) , to conceive the child and then surrender the child to the intending parents after birth. The intention of this arrangement is that the intending parents will raise their child as their own. 

The laws concerning surrogacy within Australia are primarily State and Territory based, and vary between each State and Territory. In some places within Australia there are no laws dealing with surrogacy. In other places, such as New South Wales and Victoria, commercial surrogacy is illegal, whereas altruistic surrogacy is not illegal. However altruistic arrangements are unenforceable.

Commercial surrogacy involves a payment to the surrogate mother for her services whereas altruistic surrogacy does not.

Most commonly surrogacy arrangements involve conception by way of an artificial conception procedure at an IVF clinic. In New South Wales, there are no regulations concerning surrogacy within the IVF industry, and IVF treatment for surrogacy arrangements is self regulated by the industry.   The IVF treatment of the surrogate mother will always involve an egg donation from someone other than herself, and commonly a sperm donation from one of the intending parents. 

The legal issue concerning these arrangements involves who is considered to be the legal parent of the child. Under the Family Law Act, parents of a child have parental responsibility. This entitles them to make decisions concerning the child’s welfare, such as giving consent for medical procedures or enrolling the child in a school. Under the current state of law in New South Wales and elsewhere in Australia, the surrogate mother and her married or de facto partner would be considered the legal parents of the child, regardless of the fact that the child will not have any of their DNA, and as such they would have parental responsibility of the child. 

The ACT and Western Australian have enacted laws to overcome the issue of the parentage of the child born to a surrogate mother. In both places an application can be made to a Court for an order removing the status of legal parent from the surrogate mother and her partner and conferring it upon the intending parents. This is analogous to adoption, although adoption orders in these circumstances are not available in places such as New South Wales. The effect of these Court orders under the ACT and Western Australian laws is to confer parental responsibility upon the intending parents, and the surrogate mother and her partner would be left with no responsibilities in respect of the child.

A standing committee of the Attorneys General of the States and Territories and the Commonwealth is conducting an inquiry into enacting uniform laws across Australia concerning surrogacy.  However, the ACT laws have been recommended as the model legislation to be adopted nationally.

For the moment in New South Wales, the equivalent of laws to those in the Australian Capital Territory and Western Australia do not exist. This will leave the surrogate mother and her partner in New South Wales surrogacy arrangements with the status of legal parents, and parental responsibility. The only avenue available for the intending parents in New South Wales to overcome this problem would be to apply to the Family Court for orders conferring parental responsibility upon them, although this does not amount to the intending parents acquiring the status of legal parents. Practical consequences of this include the surrogate mother and her partner potentially having a child support liability once the child is surrendered to the intending parents. 

It is becoming increasingly common for couples to enter into commercial surrogacy arrangements in overseas jurisdictions where commercial surrogacy is legal. California is one such jurisdiction where commercial surrogacy arrangements and surrogacy agencies are legal.   For those couples intending to enter into overseas surrogacy arrangements, it is recommended that they seek legal advice from a family law expert in the field of surrogacy within the jurisdiction where the surrogacy agreement and IVF treatment is intended to take place. Specifically, it is recommended they enquire as to the availability of mechanisms conferring the status of legal parent and parental responsibility from the surrogate mother and her partner to the intending couple, and naming the intending parents on the child’s birth certificate. 

It is also recommended that any couples intending to enter into overseas surrogacy arrangements seek legal advice from a family law expert in Australia as to the consequences of such arrangements in Australia, and whether any legal mechanism will to be pursued to confer parental responsibility upon them.

For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law. 
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