What Exactly Is Surrogacy?
A “surrogate” is a person who acts on behalf of another person in order to achieve a desired result; in other words, a “surrogate” is just a substitute. To put it another way, ‘surrogate parenting’ refers to one person, the surrogate, carrying a pregnancy on behalf of another person, often someone who is unable or unwilling to bear the child themselves. Such situations can, of course, emerge naturally, as a consequence of professional concerns, for example, or women might become infertile or at risk of becoming pregnant as a result of a sickness or disease.
Surrogacy is often initiated by the insemination of a fertilised egg into a healthy surrogate mother (sometimes referred to as a ‘gestational carrier’). When it comes to medical procedures, this treatment has grown frequent and generally low-risk in recent years. It is unusual for a sexual congress to occur between the gestational carrier and the male father during pregnancy. When both egg and sperm come from a married couple, the pair may decide to have a third individual carry the baby for their own reasons, which is called donor conception. The egg is most often given or obtained from the surrogate who is carrying the child to term.
Surrogate parenting in Australia is complicated due to a variety of laws that frequently contradict with one another across different jurisdictions. In certain cases, the use of a surrogate parent is a personal contractual matter between the people involved that does not entail money, while in other cases, it is a business arrangement between the parties involved. This procedure varies from adoption in both the legal and practical sense.
For example, according to Western Australian surrogacy legislation, those who seek to enter into a voluntary surrogacy agreement with a gestational carrier must first sign into a legally binding ‘Surrogacy Arrangement Agreement’ with the gestational carrier. There are several prerequisites to these agreements, which are as follows:
- The surrogate birth mother must be at least 25 years old and have previously given birth to a child;
- the agreement must be in writing and signed by all of the parties involved;
- and the parties must demonstrate that they have spoken with a counsellor and received legal advice from a solicitor at least three months before signing the contract.
Before engaging into a surrogacy agreement and before asking for a Parentage Order (which should not be mistaken with a ‘Parenting Order,’ the parties should get legal guidance from a qualified lawyer. In order to avoid a conflict of interest, a solicitor must not provide advice to both the birth mother and the couple seeking surrogacy arrangements at the same time. The parties must be medically evaluated in order to determine whether or not they are capable and suitable to be parents to a child born to a surrogate. Should be noted that the state of Western Australia explicitly eliminates age as a legal cause for excluding an individual from being involved in the care of a surrogate child.
The Reproductive Technology Council must provide its approval to the agreement reached between the parties.
This agreement must be in place prior to the birth mother getting pregnant, or else it will be deemed invalid by the court system. If a fertility clinic is involved, it is possible that the parties will demand extra requirements to be met.
There is a huge and increasing international market for commercial reproductive services, which has sparked much social, legal, and financial debate on a variety of topics. The criminalization of paid surrogacy has received a great deal of opposition.
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What is a Parentage Order and how does it work?
Providing the parties have followed the procedures outlined above in order to engage into a legally binding Surrogacy Arrangement, the arranging parents have the option of applying to the court for a Parentage Order. Depending on the jurisdiction, the legislation vary from state to state, but in Western Australia, for example, an application must be filed with the Family Court at least 28 days after the birth of the child, but no more than 6 months after the birth.
When making a judgement on a Parentage Order, the Court will take into consideration what is in the best interests of the child at the time. The arranged parents are presumed to be the child’s prefered parents, which is supported by the evidence. According to the Parentage Order, the biological parents will continue to be considered as the child’s legal parents for the rest of their lives.
‘Compensated’ or ‘Commercial’ are two different things.
Surrogacy vs. ‘Altruistic’ Surrogacy Surrogacy: A One-or-the-Other Approach
Surrogates who receive a ‘profit’ for having a child on behalf of another are distinguished from those who do not. This is recognised by the law in Australia in broad terms. When it comes to law, the challenge is defining where the boundary between the two categories may be drawn, i.e. at what point does “altruism” become “commercialism.” This is frequently taken into consideration in the context of the surrogate mother’s motive and financial reward.
Altruistic surrogacy is defined as a situation in which a woman undertakes to bear and birth a child for another person without receiving any compensation other than modest home-help expenditures or the provision of medical services throughout the pregnancy and delivery. Surrogacy of this nature is not a criminal offence in Australia, where it is rather frequent. Nonetheless, access to altruistic surrogacy is banned to single persons and homosexual couples in the Australian states of South Australia and Western Australia.
Domestic commercial surrogacy is prohibited in all Australian jurisdictions, with the exception of the Northern Territory (where no legislation exists). That is, it is against the law for a person to be compensated for their reproductive capability in any way. For women who desire to carry the foetus for monetary gain, there are no paid surrogacy services operating in Australia that may be contacted.
International commercial surrogacy is often defined as one that is arranged via the services of a professional surrogacy agency. In Queensland, New South Wales, and the Australian Capital Territory, acts relating to international commercial surrogacy, such as seeking a gestational carrier in another jurisdiction, are considered a criminal crime. The practise of commercial surrogacy was outlawed in Thailand in 2014 following a highly publicised incident involving a deformed child born to a gestational carrier. Thailand had previously been a major supplier of surrogate moms for Australian families. Commercial surrogacy, on the other hand, continues to grow in most other jurisdictions, despite the fact that the issue has not been addressed.
Generally speaking, the present legal and societal context views paying for surrogacy as a kind of commercialisation of reproduction that is fundamentally exploitative in nature. Also of concern is the pressure placed on economically disadvantaged women to join a “baby factory” in order to dramatically boost their earning potential. (See also: According to research done in countries where paid surrogacy is legal, many people believe that making an educated decision about bearing and relinquishing a child is unlikely to be damaging to either the surrogate mother or the child in question.
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Surrogacy in the Real World
In order to be considered “fully compensated,” all surrogacy arrangements must be “international” or “transnational,” exposing all parties involved to an array of complex and often contradictory legal issues in both the surrogate’s home country and here in Australia, as well as other countries around the world. The Department of Home Affairs in Australia is in charge of overseeing international surrogacy arrangements. In recent years, as a result of decreasing overseas travel and medical costs, as well as technological and telecommunications advancements, families have had more opportunities to utilise surrogate services.
Surrogacy for commercial gain has grown in popularity throughout the world, with many Australians considering it as a method of starting a family. Healthy women (typically in impoverished countries) agree to carry a foetus to term in exchange for a monetary reward, and in many cases, they agree to entirely up their parental rights to the child after delivery. There are a wide range of payment options for surrogacy services, ranging from one-time payments for the child’s carriage and delivery to what amounts to complete assistance and financial indemnity for all medical and living expenses incurred during the pregnancy and shortly following its completion.
To transfer parental duties from a surrogate to themselves, the biological parents of a child born through a surrogate must apply to the Federal Circuit and Family Court of Australia (FCFCA) for a parenting order. An aspect of the legal question surrounding commercial surrogacy is whether any arrangements made outside of Australia will satisfy the requirements for the legal transfer of parentage under the laws of the various states and territories. In some cases, this might result in Australian residents being denied the ability to be legally recognised as the legal parent and guardian of the child at issue. Compensated surrogacy may also offer issues for the new parents when it comes to bringing the child to Australia, because citizenship is not granted by right of paternity, but rather by application to the federal government on the part of the parents. ‘Australian Citizenship by Descent’ is a type of citizenship that may be obtained by a child of an Australian citizen, whether biologically related or legally adopted.
What is a parenting order and how does it work?
Arrangement parents have no other alternative than to seek for a Parenting Order from the Family Court of Western Australia if the birth mother refuses to give up the baby to them after the birth. This is exceedingly complicated and riddled with complications, especially in cases when the birth mother has formed a strong emotional attachment to the child and is both financially and emotionally capable of raising the child on her own.
It is possible that the family who arranged the surrogacy may be able to get orders in connection to the child living with them; parental responsibility in relation to making long-term decisions about the child; and any other comparable things pertaining to the child’s welfare.
Surrogacy is permitted in the majority of Australian states and territories. Surrogacy must be performed with the best interests of the child in mind (unpaid). Surrogacy for a fee (sometimes known as commercial surrogacy) is prohibited.
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The Legal Complexity of Surrogacy in Australia
The Northern Territory does not yet have any surrogacy legislation in place. Law change has recently taken place in Victoria and South Australia, and it is likely to take place (hopefully soon) in Western Australia as well. Further information regarding surrogacy laws in each state may be found on the blog, as well as other general information.
Surrogates are often older than 25 years of age. It is not necessary for a surrogate to have given birth to her own child before becoming a surrogate in Queensland, New South Wales, or South Australia.
Tasmanian intending parents are required to use a surrogate who resides in the state.
It is mandatory for intended parents in Victoria and Western Australia to use a surrogate who has already given birth, unless there are special circumstances in play.
Each state regulates surrogacy, which implies that there are no universal laws covering surrogacy across the country. Surrogacy regulations in every state are based on the same fundamental principles:
- A medical or social necessity for surrogacy must exist on the part of the Intended Parents — in other words, they must be unable of conceiving or carrying a child on their own, or, even if they are capable, it would be dangerous for them to do so. In order to determine who is eligible for surrogacy in your state, you need research the legislation in your area, as this differs from state to state.
- Throughout the pregnancy, the surrogate retains her bodily autonomy and independence. The partners will have agreements in place on pregnancy and birth arrangements, but the surrogate will have the final say when it comes to matters regarding her own body. The experiences of surrogates in delivering the baby to the intended parents are incredible.
- The surrogacy agreement must be purely charitable in nature. Commercial surrogacy is prohibited in all Australian states and territories. Surrogates and their partners are not permitted to be compensated for carrying a child for another individual.
Despite the fact that surrogacy is a noble endeavour, the intended parents are required to fund the surrogate’s expenditures related to the pregnancy and birth of the child. More information on the costs of altruistic surrogacy may be found here.
A surrogate and her partner are identified as the baby’s parents on the Birth Certificate when he or she is born, and the birth is recorded in the state in where the baby was born. Following the birth of the child, the Intended Parents may petition the court for a Parentage Order in the state in which they reside. The Order changes the legal custody of the child from the birth parents to the intended parents. The Birth Certificate is then re-issued with the names of the new parents stated on it, rather than the surrogate and her partner on the original.
Any woman who wants to become pregnant must seek independent legal guidance before attempting to conceive in any state. Neither gestational surrogacy nor conventional surrogacy agreements are exempt from this rule.
Surrogacy Laws in the State of Western Australia
Surrogacy Agreement Agreements must be completed and signed by both the intended parent and the carrier before a voluntary surrogacy arrangement may be entered into in Western Australia. A legitimate agreement must meet the following requirements in order to be considered valid:
- The surrogate mother must be at least 25 years old and must have previously given birth to a child in order to qualify.
- The agreement must be in writing and signed by all of the persons involved.
- Legal assistance and counselling have been provided to all parties.
- The parties must undergo a medical evaluation to determine whether or not they are eligible to be parents of a child delivered through a surrogate.
- Before the surrogate may get pregnant, the agreement must be authorised by the Reproductive Technology Council. The agreement must be in place before the surrogate can become pregnant.
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Surrogacy Regulations in the ACT
In the Australian Capital Territory, a non-commercial surrogacy agreement may be entered into provided the following conditions are met:
- The intended parents must be at least 25 years old; the surrogate must be at least 18 years old; and the intended parents must be citizens of the Australian Capital Territory.
- The intended parents are a couple who are expecting a child.
- ACT agreements require that any payments paid to a surrogate be only for the purpose of reimbursing the surrogate for expenses incurred during the pregnancy. Adverts placed by intended parents in search of a surrogate, as well as advertisements placed by those who wish to serve as surrogates, are prohibited.
Surrogacy Laws in New South Wales
Surrogacy arrangements in New South Wales are outlined in the Surrogacy Act 2010, which was passed in 2010. A surrogacy agreement may be entered into if and only if the following conditions are met:
- The intended parents are at least 25 years old and live in New South Wales; the surrogate is also at least 25 years old and lives in New South Wales.
- The agreement must not be for commercial gain, and money may only be paid to cover the costs of the pregnancy and its complications.
- Surrogacy must be for the sole purpose of pregnancy, which means that the surrogate must not be genetically related to the child.
Interested parties in becoming parents or adopting a child are authorised to advertise as long as they have not paid a charge for the advertisement.
Surrogacy Laws in the State of Queensland
Surrogacy arrangements in Queensland are governed by the Surrogacy Act 2010, which was passed in 2010. A person is eligible to get into a surrogacy arrangement if they meet the following criteria:
- At least 25 years of age are required for the intending parents, the surrogate, and their partner;
- the intended parents must be residents of Queensland;
- and all parties must have received legal guidance and counselling.
- Commercial arrangements are prohibited, and only gestational surrogacy is authorised.
Surrogacy Laws in South Australia
Surrogacy rules in South Australia are outlined in the Family Relationships Act 1975, which was passed in 1975. A person is eligible to get into a surrogacy arrangement if they meet the following criteria:
- The intended parents, surrogate, and their partner are all at least 18 years old;
- the intended parents are residents of South Australia;
- all parties have received legal advice and counselling;
- and the intended parents are not pregnant.
Unless both intended parents are unable to conceive with their own genetic material, the intended mother must be infertile or appear to be infertile, or there is a serious risk of genetic defect, disease, or illness being passed to the child if the intended mother were to become personally pregnant; the arrangement must be in writing, signed, and certified by a lawyer; the intended parents must be genetically related to the child.
The arrangement must be non-commercial in nature; nonetheless, there is no rule prohibiting the use of advertisements.
Surrogacy Laws in the State of Tasmania
Surrogacy arrangements in Tasmania are outlined in the Surrogacy Act 2012, which was passed in 2012. A person may get into a surrogacy agreement provided they meet the following criteria:
- The intended parents must be at least 21 years old;
- the surrogate must be at least 25 years old;
- the surrogate must have given birth to at least one living child;
- and all parties must be legal residents of Tasmania at the time of the birth.
Legal assistance and counselling have been provided to all parties.
Both parties have signed a written agreement that outlines the terms of the arrangement.
The surrogacy arrangement is necessary because of a medical or social requirement.
The agreement must be non-commercial in nature, and only gestational surrogacy is permissible in this situation.
Surrogacy Laws in the State of Victoria
Surrogacy laws in Victoria are controlled by the Assisted Reproductive Treatment Act 2008, which was passed in 2008. A person is eligible to get into a surrogacy arrangement if they meet the following criteria:
- The intended parents must be at least 18 years old;
- the surrogate must be at least 25 years old;
- the intended parents must be residents of Victoria; the surrogate must be a resident of Victoria;
- The surrogate mother has previously given birth to a child.
- The intended mother is unlikely to get pregnant, and that the baby’s or mother’s life is not in danger if she were to carry the pregnancy;
- that the surrogate is not genetically linked to the child;
- and that all parties have been provided with counselling.
The agreement must be non-commercial in nature, and neither party is permitted to advertise.
Surrogacy in the Northern Territory
Surrogacy is not legal in the Northern Territory due to a lack of law.
Aspects of Surrogacy Agreements That Give Rise to Disputes
If a birth mother refuses to surrender a child to the arranged parents, the arranged parents’ sole remedy is to file an application for a Parenting Order with the Federal Circuit Court or the Federal Family Court. This is a difficult position to navigate, especially when the birth mother has formed a strong attachment with the child and is capable of raising him or her.
It is possible for a parenting order to specify who the child is to reside with, who has parental responsibility for the child, and other issues pertaining to the child’s welfare. The orders will be issued in accordance with what is in the best interests of the child.
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Surrogacy alternatives available in other countries
When it comes to surrogacy, the rules surrounding it get significantly more convoluted when it comes to international surrogacy.
Keeping track of what is necessary by law becomes increasingly challenging when different countries begin to overlap and oversee the surrogacy procedure at the same time.
While commercial surrogacy is not permitted in Australia, it is permitted in a number of other nations, including the United Kingdom. When deciding whether or not to enter into an international surrogacy arrangement (especially a commercial one), it is important to seek expert legal advice about the laws governing international surrogacy in both your home state or territory and the country where the surrogate mother resides in order to avoid any legal pitfalls. It is also important to remember that in the Australian Capital Territory, New South Wales, and Queensland, it is an offence to enter into a commercial surrogacy arrangement outside of Australia. As a result, parents who enter into such an arrangement may face legal consequences when they return to Australia.
Additionally, it is necessary to consider the type of citizenship a child will receive at birth, as well as how the intending parents want to bring the child to Australia. Distinct countries have different rules governing who is eligible to apply for citizenship.
Children born to Australians living in other countries do not immediately become citizens of Australia, and there are some conditions that must be met before an application may be submitted. An example of such a requirement is the supply of a surrogacy contract that was engaged into prior to the conception of the child in question. As this is a complicated document, it is recommended that it be prepared with the aid of experienced surrogacy lawyers who have experience in Family Law in both Australia and the country where the surrogacy agreement was completed.
Other legal aspects of surrogacy to consider
Parentage Orders and any prerequisites that must be completed in order for them to be granted must also be considered in addition to the slew of laws and requirements that must be followed by the parties involved in a surrogacy agreement. The Court will issue an Order to modify the birth certificate of a child to show the intended parents of a surrogacy arrangement as the child’s parents (rather than the surrogate or ‘birth mother’ and her partner).
When it comes to Victoria, the following requirements must be met in order for a Parentage Order to be granted:
- The Patient Review Panel gave its clearance in advance of the surrogacy procedure.
- Surrogacy counselling was provided to all partners in a professional manner.
- When the application is submitted, the child is already living with the prospective parents in Victoria.
- It has been determined that the surrogate has given her permission to the Parentage Order (and her partner if she has one).
- The Order must be in the child’s best interests at all times.
The process of obtaining a Parentage Order is likewise subject to time constraints, which vary from state to state.
Making the decision to start a family should be an exciting time in your life, and it should not be complicated by the stress of negotiating complex legal issues.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.