SURROGACY – A COMPLICATED PROCESS IN QUEENSLAND AND AUSTRALIA
What is the surrogacy process in Australia?
Surrogacy arrangement is an arrangement between a woman ( the “birth mother”) and another person or persons ( the “intended parent or parents”). The birth mother can give birth to a child with the intention that the child is to be treated as the child of the intended parents. It is intended that the parents will then have custody and guardianship of the child.
Commercial surrogacy arrangement
A commercial surrogacy arrangement occurs if the birth mother receives any type of payment, reward or other material benefit or advantages from giving birth to the child. Commercial surrogacy arrangements are not legal in Queensland nor Australia (apart from the Northern Territory where there seems to be little legislation in regard to this). The birth mother can be compensated for reasonable medical, legal and counselling expenses arising from the birth of the child. These payments do not render the surrogacy arrangement a commercial one.
Parentage order and the Surrogacy Process
An order is made by the Children’s Court for the transfer of the parenting of the child to the intended parents.
Surrogacy arrangements can only occur if the intended parents for medical or other reasons are unable to conceive and give birth to a child. In the case of female same sex couples both intended parents must be able to show that both women are unable to carry or conceive a child on medical grounds.
There are strict requirements for entering into any surrogacy agreement and those requirements must be complied with. The agreements must be entered into prior to the child being conceived.
Even if the parties enter into a surrogacy agreement in Queensland these agreements are unenforceable. This means that the parties cannot enforce the arrangement if things go wrong. In such circumstances the parties are required to bring an application in the Family Court pertaining to the parenting of the child. The Family Court will then engage in an assessment of the child’s best interest.
To legalise the arrangement after the birth of the child the parties must apply for a parentage order 28 days after the child is born and before the child is 6 months old. Such applications are brought before the Children’s Court. There are strict conditions and regulations that must be adhered to and complied with if this application is to be successful.
Requirement to obtain independent legal advice and counselling.
The legislation requires that all parties to a surrogacy arrangement obtain independent legal advice and counselling before entering into any agreement.
Overall surrogacy arrangements are complicated in Queensland. Further information may be obtained on this by visiting our website.