A surrogate is a woman who carries a baby for someone who does not carry their own child. After the baby is born the surrogate gives the baby to the intended parents.
There are two types of surrogacy options, traditional surrogacy and gestational surrogacy. Traditional surrogacy is when a woman uses her own eggs, which is fertilised by either donor sperm or recipient’s sperm. Traditional surrogates are genetically related to the child because their own eggs are used in the process. A gestational surrogate is not genetically related to the child she carries. IVF is used to create embryos by using sperm and eggs from either the intended parents or sperm/egg donors. The embryos are implanted into the gestational surrogate’s uterus.
All parties to these types of arrangements are legally required to have independent legal advice. We are experts at advising about these matters and drafting compliant surrogacy agreements. It is important to have clear agreements in place so that all parties understand their position, particularly in relation to the costs of the arrangement and the future right to involvement in the child’s life and to comply with some State laws that class certain types of surrogacy arrangements as being illegal.
There are two types of surrogacy arrangements, altruistic and commercial. Altruistic surrogacy is when a surrogate is given no financial gain for carrying a child. Only realistic out of pocket expenses are covered by the intended parents. Examples include medical costs, travel and time off work. Altruistic surrogacy can use either a traditional or gestational surrogate. Altruistic surrogacy is permitted in Australia. Commercial surrogacy is where a surrogate is paid a fee for carrying the child. Commercial surrogacy is not permitted in Australia. It is also illegal to use an international agency that supports commercial surrogacy.
Australian surrogacy laws are complex. The laws vary from State to State and Internation laws are further frequently changing in the area. It is illegal to advertise for a surrogate or to offer to be a surrogate in all Australian states besides NSW, SA, WA and NT. In the parts of Australia where it is legal to advertise, the advertisement must not be a paid advertisement.
Under Australian law, surrogacy agreements are strictly not legally binding. That is because the birth mother is considered the mother of the child, regardless of genetics. However, an obligation created in a surrogacy agreement to reimburse a surrogate for her costs is enforceable. We recommend preparing an agreement that clearly lists all the parties’ intentions before starting the surrogacy process to avoid difficulties that may arise, such as if the surrogate changes her mind and wants to keep the baby. If any issues arise and they need to be resolved in court, the agreement, signed by all parties and witnessed, can be used as evidence. We can also advise relating to obtaining parenting orders from the Supreme Court to transfer parentage thus formalising any parenting agreement. Court decisions relating to surrogacy are guided by the principle that the best interests of the child are paramount.
To be eligible for a parenting order and before signing a parenting agreement the following requirements must be met: –
- The surrogate and intended parent/s must have had independent counselling
- The surrogate and the intended parent/s must have had independent legal advice
- The surrogate must have freely consented to the arrangement without coercion
from the intended parents at the time of applying for a parenting order the child must be living with the intended parents.
Consent Orders, Parenting Plans, Citizenship and VISA requirements are also important parts of surrogacy arrangements, as well as, listing the surrogate parents on the birth certificate.
If you are a surrogate or an intending parent we can help. We have expert surrogacy lawyers who can assist with the preparation of surrogacy agreements or provide assistance relating to applications for parenting orders. Contact our Principal, Glenn Thexton on our office number, by email: firstname.lastname@example.org or on his mobile 0410 639 921 to discuss further.
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