What is a surrogacy arrangement?
A surrogacy arrangement is an agreement between a woman (the birth mother) and another person or couple (the intended parents) where the birth mother agrees to become pregnant with a child for the intended parents. Once the baby is born, the birth mother agrees gives the baby to the intended parents.
There are two relevant types of surrogacy arrangements; altruistic (or non-commercial, except for reasonable surrogacy costs) and commercial. Commercial arrangements involving a payment, reward or any material benefit to a party (apart for reimbursement for reasonable surrogacy costs) within the arrangement are illegal in Queensland. Non-commercial surrogacy arrangements are therefore the only legalised arrangements in Queensland.
Although there is currently no Commonwealth legislation governing surrogacy, Queensland has implemented the Surrogacy Act 2010 (Qld) to regulate surrogacy arrangements within Queensland. This legislation ensures that intended parents and surrogates are properly screened, have the benefit of legal advice and ensures that the child will have the ability to know his or her genetic heritage.
How do I enter into a surrogacy arrangement and transfer parentage?
There are certain legal requirements that must be met before entering into a surrogacy arrangement. If these are not met, the Court may refuse to legally recognise the rights of the intended parents in relation to the child. The following requirements must be satisfied:
Obtain independent legal advice
The birth mother and intended parents must seek independent legal advice before making a surrogacy arrangement, to ensure that they are fully aware of their rights, obligations and the implications involved in the arrangement. If you are considering entering into a surrogacy arrangement, please contact our office to seek legal advice from one of our experienced family lawyers.
The birth mother and intended parents must also seek counselling from an appropriately qualified counsellor before entering into a surrogacy agreement. This counselling will inform the parties of the social and psychological implications of the surrogacy arrangement.
Write out the surrogacy agreement
When entering into an arrangement, the agreement between the birth mother and intended parents should be put into writing. This agreement should outline the agreed terms surrounding the arrangement, including which party will pay any costs incurred by the arrangement (such as medical costs for the birth mother and child, the birth mother’s loss of earnings, any legal costs, counselling fees and all other potential fees).
Conception and pregnancy
During the conception and pregnancy of the child, the birth mother ultimately retains the right to control the pregnancy, including deciding how the pregnancy will occur and what genetic material will be used. After conception, the relinquishment of parentage by the birth mother still remains voluntary, which means that if the surrogate changes her mind, there will be no transfer of parentage to the intended parents.
Register the birth
The child’s birth must be registered within 60 days of the birth date. This registration must be completed in order to obtain the child’s birth certificate. This registration process can be completed by filling out the relevant birth registration form and lodging it either online, via post or in person. An application fee will apply.
Obtain a surrogacy guidance report
After the baby is born, the birth mother and intended parents must obtain a surrogacy guidance report from an appropriately qualified and independent counsellor (a counsellor that has not providing counselling to any of the parties, and is not connected to the medical practitioner who carried out the pregnancy procedure). The counsellor must have certain qualifications to be classified as an ‘appropriately qualified counsellor’.
Apply for a parentage order
Before the intended parents can apply for a parentage order, the baby must live with the intended parents for 28 days. The baby must be between 28 days and six months old when the parents apply. The application is to be made to the Children’s Court of Queensland. This parentage order will transfer the parenting rights of the child, and will allow the birth certificate to be amended to bear the details of the intended parents. Without such amendment, some of the practicalities of day to day parenting can be challenging to the intended parents.
Once the court grants a parentage order, the birth mother no longer has a legal parental relationship with the baby. The intended parents thus become the baby’s legal parents. The parentage order must then be registered with the Registry of Births, Deaths and Marriages which will amend the baby’s birth certificate to show the intended parents as the parents.
The laws and processes involved in each of these steps, as well as the application for the parentage order are subject to many requirements that must be satisfied. This process can therefore be complicated for many parents, and is sometimes a daunting experience.
These steps are simply the first layer of the intricate legal topic of surrogacy in Queensland. There are many more issues in relation to surrogacy that have summoned many decisions within the Family Court of Australia, such as the decision made in Bernieres and Anor & Dophal and Anor (2017) FamCAFC 180. Within this case, the court considered the importance of the biological connection between the birth mother and the child, and whether this connection entitled the birth mother to a parenting declaration.
This case highlights the intricate issues within the law of surrogacy and will be one of the many surrogacy topics to be discussed.
If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.