Surrogacy Laws in Australia: an absence of uniformity causes confusion

Date: Jul 02, 2010
Document Type: Newsletter

With Queensland introducing new surrogacy laws in 2010, altruistic surrogacy has become legal throughout Australia. However, a lack of uniformity with regard to individual State’s legislation means that intended parents can become confused. This is compounded by the impact of Federal laws, particularly immigration laws, on overseas surrogacy and has caused many parents to be held up in foreign countries awaiting immigration papers for their child.

Given the diversity of surrogacy laws in Australia, and the impact that other legislation can have on the surrogacy process, it is prudent and sometimes obligatory to seek legal advice before embarking on the process. Discussing the steps of the process with a solicitor can help isolate the issues and determine legalities at each step. It is important to know the rights of the surrogate mother, the legislation governing agreements, what sort of payments can be made legally, the legal processes that might be encountered if either party changes their mind or dies or if the pregnancy encounters difficulty and requires entering into medical procedures.

It is also essential to be familiar with adoption laws in your state, and with immigration legislation that might affect the outcome if an overseas surrogate is engaged.

Surrogacy itself is not a new course of action for people with fertility issues and has been wide-spread for centuries within families and communities. However, given developments in reproductive technology in recent years, there is a growing body of legislation designed to protect women and children from abusive practices within the commercialisation of the surrogacy.

 

Surrogacy in NSW

NSW Surrogacy Law was reviewed in 2009. The Legislative Council Standing Committee on Law and Justice (LCSC) into altruistic surrogacy in NSW released its report in May 2009. The government responded in December 2009.

The report recommended that the opposition to commercial surrogacy be strengthened by ensuring that the reasonable expenses payable to the birth mother are made clear and that courts be given the power to grant a parentage order to the intended parents if it is satisfied that it is in the best interests of the child, and that the child is living with the intended parents at the time of the application. Also, the report suggested that the surrogacy arrangement must be entered into before conception and that all parties must receive legal advice and counselling and give their informed consent.

The government reiterated that as the report supported altruistic surrogacy, it would strengthen its efforts against commercial surrogacy. The underpinning premises of the report were agreed upon by the government i.e. minimum intervention in people’s lives, concern for the best interests of the child and the minimisation of the scope for dispute between the surrogate mother and the intended parents. For more detailed information on NSW legislation with regard to surrogacy contact your solicitor or visit here for the NSW government approach to surrogacy.

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