If you are considering surrogacy, it is important to understand the rules in place to ensure the protection of all parties involved, that your arrangement is secure, and the best interests of the child are paramount.
What is surrogacy and how is it regulated?
Surrogacy is a process where a woman agrees to carry and give birth to a child on behalf of another person or persons. It is a great pathway for families who cannot conceive or carry the child themselves.
In New South Wales, the process is regulated by the Surrogacy Act 2010 (NSW) (‘the Act’). If assisted reproductive technologies (for example, IVF) are being used, the Assisted Reproductive Technology Act 2007 (NSW) applies.
It is important to note the difference between altruistic surrogacy and commercial surrogacy for the purposes of the legislation. Altruistic surrogacy occurs without commercial reward or profit for the surrogate, while in commercial surrogacy, the surrogate receives a financial profit, gain or reward. Commercial surrogacy is prohibited in Australia. This aims to protect human rights and prevent exploitation. A surrogate can, however be paid or reimbursed for their reasonable costs related to the pregnancy, including trying to become pregnant, being pregnant, giving birth and entering into the surrogacy agreement.
The Act aims to protect the best interests of children born as a result of surrogacy agreements and provide legal certainty for parties to such agreements.
What are the steps involved in surrogacy?
Surrogacy law is comprehensive and can be a bit overwhelming, so we can break it down to three steps for easier understanding.
1. Eligibility criteria;
2. The surrogacy agreement; and
3. The parentage order.
Step 1 – Are the parties eligible?
The Act sets out the preconditions to making a parentage order, which must be considered before a surrogacy agreement is to be made:
The intended arrangement must be altruistic, as defined above;
The surrogate must be at least 25 years old when she enters the surrogacy agreement;
The intended parent/s must be at least 18 years old, and if under 25 years old, must be able to display sufficient maturity;
The intended parents can be a couple or single person. The couple may be married or in a de facto relationship. This applies equally to same sex couples; and
There must be a medical or social need for the surrogacy.
In addition to these basic requirements, both parties must receive separate, independent legal advice and undertake counselling.
Step 2 - Surrogacy Agreements
The Act defines a surrogacy agreement as:
“an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons”
Surrogacy agreements cover topics such as the roles and expectations of the parties, arrangements for medical decisions, arrangements for reimbursement of reasonable expenses and possible contact post-birth. It must be made pre-conception.
Surrogacy agreements themselves are not legally enforceable, thus once the child is born a parentage order must be made, this is Step 3.
Step 3 – Parentage Order
When the child is born, their legal parent will be the surrogate mother (and her partner, if any). So, a parentage order must be made to transfer the parentage of the child to the intended parents.
The intended parents can make an application for the parentage order between 30 days and 6 months of the child being born.
In addition to the requirements set out in Step 1, to make a parentage orderm, the court must be satisfied that:
A surrogacy agreement was made in writing, signed by the surrogate, her partner if she has one, and the intended parent/s;
The surrogacy agreement was made pre-conception;
Making the parentage order is in the best interests of the child;
The application is made in the correct time frame (as stated above); and
The surrogate freely consents to the order.
Once a parentage order has been made, the intended parents are then the child’s legal parents!
What now?
If you are thinking about using surrogacy to expand your family, get in touch with us today and we can assist you in this journey.
This article is general in nature and is not intended to be tailored legal advice. Before you enter into any agreement it is recommended that you seek formal legal advice that considers your situation and any relevant circumstances.
