The Law and You: Surrogacy
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A delicate issue, surrogacy is a tumultuous journey of emotions for those who choose to follow its path. It’s a complex matter with many ethical and legal issues involved.
Surrogacy is when a woman agrees to bear a child on behalf of a couple who cannot have children on their own (called the ‘substitute’ couple). In the ACT, surrogacy involves assisted reproductive technology, including IVF. With surrogacy laws vastly different across Australia, it can be confusing and so it is extremely important to seek expert advice before you act.
The below questions and answers aim to shed some light on surrogacy and the legal requirements associated with it.
What is the difference between ‘partial’ and ‘total’ surrogacy?
Partial surrogacy involves the surrogate mother’s egg being fertilised by sperm from the substitute father or a donor. Total surrogacy is when an embryo is implanted into the surrogate mother which has no genetic connection to her. ACT law requires that at least one substitute parent is a genetic parent. It does not allow the surrogate mother or her partner to be a genetic parent.
Can I pay to have someone carry and deliver a baby?
This is called ‘commercial surrogacy’. It’s illegal in Australia but not in some other countries. It’s an offence in the ACT to enter into any commercial surrogacy arrangement, including an international one. If you’re caught you could face up to one year’s imprisonment or a large fine—or both.
Substitute parents can, however, pay certain out-of-pocket expenses to a surrogate mother, such as medical and travel costs, and expenses related to time off work. Again, it’s best to seek legal advice before you act.
What do I need to know about the law on parentage for surrogacy arrangements?
It’s important to understand that the law on parentage for surrogacy arrangements is wholly connected to the law concerning artificial conception procedures. In the eyes of the law in the ACT this presumes that:
- the woman who gives birth to a child is the mother of the child
- the husband, de facto partner or civil partner of the woman who gives birth—who must have agreed to the surrogacy—is the child’s father and/or second parent
- even if a woman has donated ova, she is not presumed to be the mother of the child
- even if a man has donated sperm, he is not presumed to be the father of the child.
In the capital, substitute parents can apply to the ACT Supreme Court to transfer legal parentage. This is called a ‘parentage order’. It must be made when the child is between six weeks and six months old and the Court will only make the Order if assisted conception took place in the ACT. This is an important point in relation to international surrogacy arrangements. This order is recognised by the Family Court for family law proceedings.
The ACT Supreme Court may make the parentage order if it’s in the best interests of the child and if the birth parents freely agree. The Court will also consider other factors, so, again, it’s wise to seek legal advice.
Do I need a surrogacy agreement or contract before starting this process?
This is something to discuss with your lawyer. A pre-pregnancy agreement signed by all parties will not, however, be enforced by an Australian Court. After the birth the law presumes that the woman who gave birth to the child is the child’s mother. The Court won’t make a parentage order unless the birth parents agree to it.
The legal requirement for parties to undertake counselling before going ahead with surrogacy addresses many issues that may be covered by a surrogacy agreement and allows the fertility clinic to be satisfied that parties understand ethical and medical issues.
TIP
Surrogacy is a highly complex area of law. For couples that cannot have children, but who desperately want them, emotions can run high and decisions made without the full facts. It’s essential to have full and correct knowledge so you can make carefully considered decisions. This means talking to a lawyer who is an expert in this topic.
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