What is surrogacy?
Surrogacy is a term which refers to an idea that an eligible person or persons (the intended parents) can enter into an arrangement with a third party female (the birth mother) for the birth mother to become pregnant but the child to be raised by the intended parents as if it was conceived naturally by the intended parents.
Surrogacy is becoming an increasingly popular option for those intended parents that desire to be parents but for one reason or another, are unable to conceive a child naturally.
The Law in Queensland
In Queensland, Surrogacy is governed by the Surrogacy Act 2010 (QLD), however, children who are subject to properly considered surrogacy arrangements which are implemented in their entirety are subject to the provisions of the Family Law Act 1975 (Commonwealth) in the same way that a naturally conceived child is.
Enforceability of surrogacy arrangements
Whilst the Surrogacy Act makes provision for legal and legitimate surrogacy arrangements, they are not (save for some limited circumstances) enforceable in Queensland. This means that neither party is bound to the terms of a surrogacy agreement. The surrogacy process is very much premised upon the consent and continued consent to a surrogacy arrangement until the end of the process by the birth mother and the intended parents.
However, Orders of the Court which are made as a consequence of a surrogacy arrangement being correctly implemented are binding.
By way of illustration, if a child is born and the birth mother no longer wants to transfer parentage to the intended parents, then she is not obliged to regardless of whether or not there is a surrogacy arrangement in place. In that circumstance, the intended parents may need to consider their options under the Family Law Act. Likewise, if the intended parents no longer wish to resume responsibility for the child after birth, then the birth mother retains parentage of the child and the intended parents cannot be compelled to take parentage of the child.
The requirements for intended parents and birth mothers to successfully enter and complete a legal and legitimate surrogacy arrangement in Queensland are complex and onerous. It is important that any individual considering entering into a surrogacy arrangement seeks legal advice as soon as they begin considering their options. Each party must have obtained legal advice prior to an Order being made that transfers parentage of a child.
Effecting the transfer of parentage
After 28 (twenty-eight) days following the birth of the child, the intended parents can apply to the Children’s Court for a parentage Order. A parentage Order will only be made with the consent of the intended parents and the birth mother. In addition, there are a number of onerous procedural and other requirements including the preparation of a surrogacy guidance report which must be fulfilled prior to the parentage Order being made. If a parentage Order is made, the child is considered to be the child of the intended parents for the purpose of the Family Law Act. If the intended parents do not apply for a parentage Order within six (6) months from the birth of the child, then they will need to the leave of the children’s Court to do so.
To obtain a parentage Order the Surrogacy Act imposes a number of requirements including that both the birth mother and the intended parents have attained 25 years of age and there is some basis as to why surrogacy arrangement is desirable rather than a birth by way of a natural conception.
It is important to note that in Queensland as well as in other states of Australia, New South Wales and the ACT, it is illegal to enter into a commercial surrogacy arrangement which is an arrangement whereby the birth mother makes profit or is rewarded for giving birth to a child although the birth mother is entitled to be reimbursed for reasonable costs associated with the surrogacy arrangement in Queensland.
It is important to ensure that prior to entering into a surrogacy arrangement legal advice is obtained to ensure that the terms of the surrogacy arrangement are not intruding on what is defined by the Surrogacy Act as a commercial arrangement as penalties may apply.
For more information, please contact our office to speak with one of our experienced Family Law Solicitors.