In Australia hundreds, if not thousands, of babies have been born as a result of surrogacy arrangements, where a person or couple arranges for a surrogate mother to bear them a child.
Pope calls for a ban on "surrogate motherhood"
The Pope recently placed surrogacy in the spotlight when he called for a worldwide ban on all forms of surrogacy, declaring it was a deplorable act that exploited women.
"I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother's material needs. A child is always a gift, and never the basis of a commercial contract," Pope Francis told Vatican diplomats. (Please see Surrogacy advocates defend family-making practice, after Pope Francis calls for blanket ban of 'deplorable' act, ABC News, 13 January 2024.)
Australian law agrees with the Pope on the fundamental point of not exploiting women – commercial surrogacy is illegal in Australia. In NSW it could mean two years in jail and/or a fine of $275,000 in case of a corporation or $110,000 otherwise.
Is it legal to use a surrogate based overseas?
Unfortunately, many couples find it difficult to find a surrogate in Australia and resort to seeking a surrogate overseas.
Commercial surrogacy is legal in some countries, but it is illegal for New South Wales residents to seek such arrangements overseas.
The law on this is not the same in all Australian states, and it would be best to get legal advice before considering such a plan. (Please see Going overseas for international surrogacy, Smarttraveller.gov.au, 28 November 2023.)
Different types of surrogacy
Under the NSW Surrogacy Act 2010 there are two types of surrogacy.
Gestational surrogacy is when a fertilised embryo is transferred to a surrogate. The gestational surrogate has no genetic link to the child she is carrying – the sperm and egg used to create the IVF embryo come from the intended parents or from other donors.
Traditional surrogacy is when the surrogate receives the sperm of the intended father, usually through artificial insemination, to fertilise her egg.
Are surrogacy arrangements enforceable by law?
Surrogacy arrangements in Australia need to be set out in a pre-conception agreement which the surrogate mother and her partner consent to in writing.
It is important to remember that surrogacy arrangements are not enforceable by law. A surrogate cannot be forced to relinquish the baby if she is concerned about the child's welfare.
This can be legally complicated if the child was the product of a donor egg and sperm. It is important both the surrogate mother and the prospective parents get legal advice on this possibility before they form an agreement.
Rules around surrogate motherhood
The birth mother must be at least 25 years old when she enters into a surrogacy arrangement. The intended parent must be at least 18 years old and a resident of NSW. (Please see New South Wales, Surrogacy Australia.)
There must be medical or social grounds for the arrangement, and both couples must undergo counselling and receive legal advice.
Arrangements for same-sex male couples and single men are similar to those for heterosexual couples, lesbian couples and single women.
The surrogate mother can be reimbursed for medical expenses and general costs relating to the pregnancy. It would be wise to seek legal advice as to how far this support can go to comply with the law. For instance, would it include paying for accommodation, loss of income, counselling, food, clothing, car or travel?
Who is legally recognised as the child's parent?
At birth the surrogate is recognised as the birth mother of the child. Thirty days later the intended parents can apply to the Supreme Court for a parentage order that transfers the legal parentage of the child from the birth mother to the person or persons who were intended to be parents under the pre-conception surrogacy agreement.
The birth mother must agree to the transfer, and the baby must be living with the intended parents at the time the application for the parentage order is made. The court considers the best interests of the child in its decision.
Sayesha Bali
Family law
Stacks Collins Thompson
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