Are you wanting to know more about Surrogacy? Ask us, we are here to help.
Surrogacy is certainly on the rise, both locally and on a global scale. In Australia adoption is heavily regulated, which makes helping a child in need difficult. Surrogacy is now becoming a more acceptable option for intended parents.
Sadly, some women are unable to conceive or maintain a pregnancy. It could be devastating. The reasons are plentiful; you could have a medical issue, be without a partner, be in a same sex relationship. Whatever the reason, you need to know the facts and the law surrounding surrogacy.
Surrogacy, what is it?
Surrogacy is an arrangement where a woman becomes pregnant with, and gives birth to, a child for another individual or couple without an intent of having any legal rights to that child after its birth. Surrogacy is lifechanging for those who desperately want a baby but have been unable to use traditional methods.
Surrogacy laws in Australia
There are two different types of surrogacies:
- Traditional surrogate – involving the surrogate providing their own egg.; and
- Gestational surrogacy – where the sperm and egg (genetic material) are provided by the intended parent or a third party.
Surrogacy arrangements have been known to be either altruistic or monetary/commercial.
Altruistic surrogacy does not involve any financial profit or reward. However, usually the surrogate’s medical bills and other costs associated with the pregnancy are paid by the intended parents.
Commercial surrogacy involves the surrogate receiving a financial gain from the intended parents in addition to the other costs associated with the pregnancy.
The Australian laws regulating surrogacy are not uniform across the States, meaning, that they can be quite different.
For instance, currently, the Northern Territory has no regulations at all. Lack of regulation contrary to what one may believe can actually further complicate things. This is because the surrogate and intended parents do not know their rights and obligations.
Regulation is protective, particularly to the birth mother.
For all states and territories excluding the Northern Territory, there are some general uniform Laws that apply:
- Commercial Surrogacy is illegal in Australia.
- A surrogate must be at least 25 years old before being allowed to act as a surrogate. However, in the Australian Capital Territory they must be over 18 years old.
- Generally, a medical need for surrogacy is required. In New South Wales, Tasmania, Queensland and Victoria social reasons are considered such as being in a same sex relationship. The Australian Capital Territory does not have medical or social requirements.
- In the states of Victoria, Tasmania and the Australian Capital Territory, surrogates must have already given birth to a child prior to becoming a surrogate.
- Surrogacy is open to same-sex couples in all States and Territories excluding Western Australia.
- A written surrogacy agreement setting out conditions is required except in Victoria and the Australian Capital Territory.
- Traditional surrogacy is not permitted in the Australian Capital Territory.
- Intended parents cannot advertise or publish on social platforms their intent to find a surrogate. You are not allowed to advertise (whether seeking a surrogate or wishing to be a surrogate) in the Australian Capital Territory, Queensland and Victoria.
Surrogacy laws change from place to place. Intended parents, and those considering becoming a surrogate, should speak to an experienced family lawyer.
Surrogacy options overseas
Overseas surrogacy has had disastrous consequences on surrogates and intended parents.
During the Covid19 travel bans, dozens of babies born through cross border surrogacy were stranded in temporary overseas accommodation. Babies were placed in danger and there was a risk of being sent to orphanages or even being abandoned.
Many intended parents were placed in a dire economic position and unable to assist the surrogate. Surrogates whom had high levels of vulnerability due to poverty were unable to attend medical appointments. The consequences were far reaching.
It would be exceptionally difficult to understand which law applies in the particular country selected and what laws will impact your child upon a return to Australia.
Some countries allow commercial surrogacies.
When considering whether to enter into an overseas surrogacy arrangement it is imperative that you obtain advice from an experienced family lawyer.
You need to know about the laws around international surrogacy in both your State or Territory and in the country where the surrogate mother is located or lives.
Is some States such as the Australian Capital Territory New South Wales and Queensland it is illegal to make a commercial surrogacy arrangement outside of Australia. Parents who do this face serious consequences upon their return.
With minimal provision for regulating surrogacy facilitators in Australia, there are risks of utilising illegal intermediaries. These intermediaries may or may not be participating in the trafficking of children and women. It is a very real human rights issue.
There can also be implications for the citizenship of the child. Citizenship of such children is not an automatic right and certain applications must be made.
It may be necessary to create a complex surrogacy arrangement that incorporates elements about Family Law both in Australia and the Country of the Surrogacy.
Parentage Orders and Surrogacy
The legal complexities of surrogacy do not end there.
Further complexity arises as consideration must be had for Parentage Orders. Parentage Orders are an Order by the Court to amend the Birth Certificate of a child to reflect the intended parents of a surrogacy agreement as to the child’s parents.
Laws on Parentage Orders may be governed by statutory time limitations.
Before embarking on the thought of overseas Surrogacy, we highly encourage you to reach out and have a consultation with us.
Obtaining proper advice from an Experience Family Lawyer will help keep you and your family safe during what should be an amazing new chapter of your life.
South Australian analysis of the law:
Eligibility:
The law in South Australia requires intended parent(s) to have a medical or social need for surrogacy. Surrogacy may be one of the only options available to intended parents. To enter into an agreement, you must be over 25 years old, an Australian Citizen or Permanent resident and have at least one intended parent domiciled in South Australia.
Locating a woman prepared to be your surrogate?
Often family or friends are utilised for surrogacy. If not, finding a surrogate may prove quite difficult. We recommend looking at community groups on social media specific to this issue. This can provide you with some insight from those who may have been through the journey.
In South Australia, you are allowed by law to advertise for your surrogacy but this is contingent upon the surrogacy being altruistic. To be very clear, you cannot advertise a commercial surrogacy.
Is a Surrogacy Agreements Pivotal? Yes!
A Lawful Surrogacy Agreement is essential for those utilising surrogacy in South Australia. Our state has specific pre-conditions to ensure the integrity of ethical and legal considerations.
All parties to a Lawful Surrogacy Agreement in South Australia must have been provided with independent legal advice.
That advice ought to be obtained by an experienced family lawyer to avoid any potential complications with the agreement. A lawyer experienced in surrogacy will be able to explain the legal process and the eligibility criterion to be met under the Surrogacy Act 2019 (SA).
In a bizarre twist, a Lawful Surrogacy Agreement is not enforceable, but it is still none the less required to be in place prior to the conception of the child.
The intended parent(s) are required to make an application in the Youth Court for Parentage Orders after the child’s birth. That process is to transfer parentage from the facilitating the transfer of parentage from the birth parents to the intended parent(s). If the parents neglect to do this, they will likely need to explore alternative legal options to be recognised as the child’s legal parents.
A requirement of Surrogacy Counselling
The intended parents and surrogate must have counselling prior to the finalisation of the Surrogacy Agreement.
The law makes it clear that this counselling service must be accredited to providing provide counselling, consistent with the guidelines published by the Australian and New Zealand Infertility Counsellors Association (ANZICA) and any relevant guidelines published by the National Health and Medical Research Council.
The counselling aspect assesses the suitability of all parties in this process. The goal here is to ensure or reduce the risk that the intended parents and surrogate understand any psychological and social implications associated with the agreement.
Pre-signing counselling is also required to ensure parties interest align with the most paramount consideration, the best interests of the child. The other pivotal role of counselling is to inform the parties and make them prepared for this journey.
Contact us, we can help
If you have any questions about the surrogacy process or are considering surrogacy you can contact Elena Leonardos on 08 8312 6440 or email us on info@alslaw.com.au.