1. Commercial surrogacy is not permitted in Australia.
Although each state has different laws relating to surrogacy arrangements, there is one consistent theme throughout Australia. Commercial surrogacy is not permitted in Australia, and any surrogacy arrangement must be altruistic. This means that one party cannot bargain with another party in order to persuade them to become a birth parent.
In some states, a birth parent may be entitled to be reimbursed certain expenses which they incur as a result of the pregnancy, such as medical expenses.
2. Surrogacy laws vary from state to state.
There is no uniform national legislation in relation to surrogacy arrangements in Australia. This means that the laws relating to surrogacy vary state to state. Accordingly, it is necessary for you to receive specialist advice which is tailored to where the child of a surrogacy arrangement will be born.
3. It is necessary for a person entering a surrogacy agreement to obtain legal advice and also independent counselling.
To ensure that each party entering into a surrogacy agreement is emotionally equipped to do so counselling is required.
Thereafter, and prior to entering into a surrogacy arrangement, each party must obtain independent legal advice regarding the surrogacy arrangement to understand the associated risks and processes.
4. Surrogacy arrangements are not enforceable.
Surrogacy arrangements are not enforceable in Australia. They are however evidence of each party’s intention that a biological parent may not ultimately be the legal parent of a child born of a surrogacy arrangement. In some states, surrogacy arrangements may be able to be enforced in relation to the reimbursement of any expenses, such as medical expenses, which a birth parent has incurred as a result of the pregnancy/birth.
5. After a child of a surrogacy arrangement is born, you may not be the legal parent.
There are complex presumptions which apply in relation to parentage in Australia. A birth mother is considered to be a legal parent until the making of a Parentage Order by a Court, as envisaged by a surrogacy arrangement.
There is also a presumption that any person who is married to, or in a de facto relationship with, the birth parent is also a legal parent of a child born of a surrogacy arrangement.
If you are considering a surrogate, or have been asked to be a birth parent, it is important to obtain independent legal advice to fully understand your options and position at law. Please contact one of our family law specialists in Canberra on (02) 6225 7040 to make an appointment.