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Surrogacy Law – are we failing to keep up with the changing nature of the Australian family?

April 7, 2019

Baby Feet Cupped Into Mothers Hands

It is now broadly acknowledged that the nature of Australian families has changed significantly in recent decades. Families now come in many shapes and sizes. They are becoming increasingly more “blended” (as couples dissolve and re-partner), and they include parents who are lesbian, gay, bisexual, transgender, intersex and single by choice.

Some of these new forms of family are a result of recent and rapid advances in fertility technology, such as IVF. Unfortunately, the law has at times been slow to respond.  In Australia, parentage law can also be complex as a result of uncertainty surrounding the way in which the federal Family Law Act 1975 interacts with state or territory laws.

As with IVF, there are many legal and ethical complexities that surround surrogacy.   Notwithstanding the existence of religious and moral objections, surrogate pregnancies are nonetheless on the rise both in Australia and overseas.  It is particularly common in Hollywood, with celebrities such as Kim Kardashian, Nicole Kidman and Sarah Jessica Parker all having used surrogates.

Recently, consideration has been given to the need for greater national consistency in Australia at the state and territory level and, where relevant, the Commonwealth level. In November 2018, the Australian Government released its Response to the Standing Committee on Social Policy and Legal Affairs Report on Surrogacy Matters.  This report recommended the development of a model national law that facilitates altruistic surrogacy in Australia with regard to a number of guiding principles.  These principles include the need for legal clarity about the parent-child relationships that result from surrogacy arrangements.

The Government’s Surrogacy Matters report was made in response to a parliamentary inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements. The inquiry heard evidence of the difficulties that are faced by parents looking for a surrogate in Australia, of increasing numbers of people looking for surrogacy options overseas and of discrimination faced by single parents and same-sex couples in some State jurisdictions.

In Western Australia, the law concerning surrogacy is principally governed by the Surrogacy Act 2008. Single men and same-sex couples are unable to enter into surrogacy arrangements, and in line with other Australian jurisdictions, all commercial surrogacy arrangements in WA are illegal. There are also stringent requirements for getting surrogacy approved, including: the need for a written agreement signed by all parties, that each of the parties undertake counselling, that each be assessed by a clinical psychologist and that each receive independent legal advice.

Surrogacy agreements take time. Even in straightforward matters involving experienced lawyers and organised clients, who have explored and resolved all material matters in the course of counselling and ongoing conferral prior to the engagement of lawyers, a surrogacy agreement will likely still take at least 4-8 weeks to finalise.

Some of the bigger issues that need to be agreed between parties to a surrogacy agreement might include:

  • Who should be present at the birth of the baby?
  • Will the child be introduced and otherwise have any contact with the birth mother’s other children?
  • What information exchange, if any, has been agreed between the arranged parents and the birth mother concerning the child in the future?
  • Has there been any consideration given to when and by whom the child, (if at all), should be informed as to the circumstances of his/ her birth?

Following the birth, there are a number of steps that then have to be taken in order to obtain a parentage order from the Family Court of WA for the child. The birth parents will remain the legal parents and named on the birth certificate until parental responsibility is transferred to the arranged parents. Any court order to transfer the parentage of a surrogate child to the intending parents must be based on the child’s best interests and is contingent upon a surrogacy arrangement having been approved by the Western Australian Reproductive Technology Council.

Surrogacy law is an evolving and complex area of family law. It is essential that the surrogate mother and the intending parents obtain high quality, independent legal advice prior to entering into a surrogacy arrangement. Lucy Thomas, Director at Paterson & Dowding is experienced in providing independent advice to those wishing to enter into a surrogacy agreement. For an appointment, please telephone (08) 9226 3300.

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