Are you exploring your options for growing your family through surrogacy? Below is an overview of Australian surrogacy laws as they stand today.
Surrogacy in Australia is regulated in each State, which means there is no uniform law that covers surrogacy across the country. Surrogacy laws in all States follow the same basic principles:
· The Intended Parents must not be able to either conceive or carry a baby themselves. You should check the laws in your State to see who can access surrogacy.
· The surrogacy arrangement is not enforceable. This means that if the surrogate does not relinquish the baby, or the intended parents do not accept the baby, neither party can enforce the agreement. However, the surrogate can enforce the agreement to recover prescribed costs.
· The surrogacy arrangement must be altruistic. Commercial surrogacy is illegal in all States in Australia. This means the surrogate and her partner cannot be paid for carrying a baby for someone else.
· Whilst surrogacy is altruistic, the intended parents must cover the surrogate’s expenses in relation to surrogacy, pregnancy and birth.
· When the baby is born, the birth is registered in the State where the baby is born, with the surrogate and her partner listed as the baby’s parents on the Birth Certificate. After the birth, the Intended Parents can apply to the Court for a Parentage Order (also called a Substitute Parentage Order) in the State where they live. The Order transfers parentage from the birth parents (the surrogate and her partner) to the intended parents. The Birth Certificate is then re-issued with the new parents listed, instead of the surrogate and her partner.
The applicable laws are those in the State where the Intended Parents live.
Surrogacy arrangements in Australia are regulated by State legislation. If you have a child born through international surrogacy arrangements, the Commonwealth Family Law Act applies.
The intended parents and the surrogate and her partner must obtain independent legal advice from separate lawyers. If a written agreement is required, parties might draft their own agreement, but it is not valid unless a lawyer has provided advice and all parties have signed the Agreement.
All State jurisdictions require everyone to obtain legal advice before attempting to become pregnant. This applies to both gestational and traditional surrogacy arrangements.
If you are considering international surrogacy, you should consult a lawyer in your destination country.
Contact Sarah today and have a chat about how the Australian surrogacy laws affect you.