Surrogacy - An Alternative to Creating Families

The laws concerning surrogacy within Australia are primarily State and Territory based, and vary between each State and Territory. In some places within Australia there are no laws dealing with surrogacy. In other places, such as New South Wales and Victoria, commercial surrogacy is illegal, whereas altruistic surrogacy is not illegal. However altruistic arrangements are unenforceable.

Commercial surrogacy involves a payment to the surrogate mother for her services whereas altruistic surrogacy does not.

Most commonly surrogacy arrangements involve conception by way of an artificial conception procedure at an IVF clinic. In New South Wales, there are no regulations concerning surrogacy within the IVF industry, and IVF treatment for surrogacy arrangements is self regulated by the industry. The IVF treatment of the surrogate mother will always involve an egg donation from someone other than herself, and frequently a sperm donation from one of the intending mothers and fathers. See IVF Clinic in Mumbai and Surrogacy in India

The legal issue concerning these arrangements involves who is considered to be the legal parent of the child. Under the Family Regulation Act, parents of a child have parental responsibility. This entitles them to make decisions concerning the child's welfare, such as providing consent for medical procedures or enrolling the child in a school. Under the current state of laws in New South Wales and elsewhere in Australia, the surrogate mother and her married or de facto partner would be regarded as the legal mothers and fathers of the child, regardless of the fact that the child will not have any of their DNA, and as such they would have parental responsibility of the young child.

The ACT and Western Australian have enacted laws to overcome the issue of the parentage of the child born to a surrogate mother. In both locations an application can be made to a Court for an order removing the standing of legal parent from the surrogate mother and her partner and conferring it upon the intending mothers and fathers. This is analogous to adoption, although adoption orders in these circumstances are not available in locations such as New South Wales. The effect of these Court orders under the ACT and Western Australian laws is to confer parental responsibility upon the intending mothers and fathers, and the surrogate mother and her partner would be left with no responsibilities in respect of the child.

A standing up committee of the Attorneys General of the Says and Territories and the Commonwealth is conducting an inquiry into enacting uniform laws across Australia concerning surrogacy. However, the ACT laws have been recommended as the model legislation to become adopted nationally.

For the moment in New South Wales, the equivalent of laws to those in the Australian Capital Territory and Western Australia do not exist. This will keep the surrogate mother and her partner in New South Wales surrogacy arrangements with the standing of legal mothers and fathers, and parental responsibility. The only avenue available for the intending mothers and fathers in New South Wales to overcome this problem would be to use to the Family Court for orders conferring parental responsibility upon them, although this does not amount to the intending mothers and fathers acquiring the standing of legal mothers and fathers. Practical consequences of this include the surrogate mother and her partner potentially having a child support liability once the child can be surrendered to the intending mothers and fathers.

It is becoming increasingly common for couples to enter into commercial surrogacy arrangements in overseas jurisdictions where commercial surrogacy is legal. California is one such jurisdiction where commercial surrogacy arrangements and surrogacy agencies are legal. For those couples intending to enter into overseas surrogacy arrangements, it is recommended that they seek legal advice from a family law professional in the field of surrogacy within the jurisdiction where the surrogacy agreement and IVF treatment is intended to take place. Specifically, it is recommended they enquire as to the availability of mechanisms conferring the standing of legal parent and parental responsibility from the surrogate mother and her partner to the intending couple, and naming the intending mothers and fathers on the child's birth certificate.