Surrogacy Agreements and Parentage Orders

By Anya Aidmananya bw 2 cropped

Earlier this month, surrogacy was thrown into the national spotlight again after a surrogacy agreement in Queensland went sour.

Surrogacy laws in each state and territory differ, and would-be parents, surrogates and other participants face an often complex labyrinth in their pursuit of clear answers about the legal framework within which they are embarking upon their journey.

Before you proceed with a surrogacy journey, we recommend that you take the time to discuss your plans in detail and to seek advice from professionals. An overview of what you can expect to undertake is as follows:

  1. Informal discussions and interim agreements

Before you seek legal advice, we recommend that you take the time to fully and frankly discuss your surrogacy arrangement with the prospective participants in your arrangements. Discuss the detail: what, when, how. Think of contingencies, and think broadly. For example:

  • Do you have a shared understanding of how you wish to conduct the fertility treatment (for example, hormones and so on)?
  • Do you have a shared understanding of whether and how to discuss and explain your arrangements to others? What about your family (and current children, should the birth parents have any)?
  1. Medical Enquiries

You may have already approached a fertility clinic for a preliminary consultation. But as you move forward, you may be starting to have more extended consultations, undergo various testing for the intended birth mother and also procedures with respect to the embryo. The intended parents may have already undergone an IVF procedure previously that resulted in the creation of an embryo which is stored; or otherwise there may be procedures underway to create the embryo.

  1. Legal Advice

Contemporaneously with making your medical enquiries, you should be obtaining independent legal advice.

The surrogate parents and the birth parents cannot share the same lawyer.

  1. Counseling

Before any transfer procedure is undertaken, both the birth parents and commissioning parents are required to undergo counseling from an appropriately qualified counselor. This is generally to occur prior to entering into a Surrogacy Agreement.

  1. Drafting the Surrogacy Agreement

The most common legal avenue through which non commercial surrogacy arrangements are documented is a Surrogacy  Agreement

A Surrogacy Agreement is not legally binding in the way that, say, a contract is. But the Agreement may be admissible as evidence of the arrangement entered into.

A Surrogacy Agreement will generally express your shared intention that the surrogate parents relinquish any child born to the intended parents.

Surrogate parents and intended parents must agree on the terms of the surrogacy arrangement, including who will pay the legal and other costs. Commercial surrogacy, and therefore financial reward, are prohibited. However, intended parents can pay all reasonable costs associated with a surrogacy arrangement to the surrogate parents.

  1. IVF Procedure and pregnancy

Upon completion of counseling, and having obtained independent legal advice and executed an Agreement, a fertility clinic will generally permit parties to effect a transfer of embryo.

The surrogate, or birth mother, is presumed to be the parent of a child she carries, until such time that the child is at least 6 weeks old and a parentage order can be made (considered in greater detail below). This means that the birth mother can determine how she conducts her pregnancy, and that the birth mother can make medical decision with respect to herself and the child during this time. It is important for both surrogate and intended parents to have discussed how they propose to manage the pregnancy to avoid tension, confusion or otherwise.

For example, have you discussed medical termination and gained an understanding of each other’s views about the circumstances in which this would be likely?

  1. Register the birth

In the ACT, the birth parents must register the baby’s birth with the Registry of Births, Deaths and Marriages within 4 weeks of the baby being born.

  1. Parentage Order

To actually give the surrogacy agreement, both sets of parents need to apply to the ACT Supreme Court for a parentage order.

A Parentage Order may be made in respect of a child conceived in the ACT. The Application must be made within six (6) months after the birth of the child but not within six (6) weeks of the birth. The substitute parents (and the child) must reside in the ACT at the time of the Application. The Supreme Court in deciding whether to make a Parentage Order must consider:

  • whether the child’s home is, and was at the time of the application, with both substitute parents;
  • whether both substitute parents are at least 18 years old;
  • if only 1 of the child’s substitute parents has applied for the order, and the other substitute parent is alive at the time of the application, whether:
  • the other substitute parent freely, and with a full understanding of what is involved, agrees to the making of the order in favour of the applicant substitute parent; or
  • the applicant substitute parent cannot contact the other substitute parent to obtain his or her agreement under subparagraph (i);
  • whether payment or reward (other than for expenses reasonably incurred) has been given or received by either of the child’s substitute parents, or either of the child’s birth parents, for or in consideration of—
  • the making of the order; or
  • the requirement that both birth parents freely, and with a full understanding of what is involved, agree to the making of the order; or
  • the handing over of the child to the substitute parents; or
  • the making of any arrangements with a view to the making of the order;
  • whether both birth parents and both substitute parents have received appropriate counselling and assessment from an independent counselling service; and
  • if a birth parent is dead or incapacitated or can not be contacted – any evidence before the Court that the birth parent no longer intended or intends the substitute parents to obtain a Parentage Order about the child.

The Supreme Court may take into consideration any other relevant matter.

If you would like to discuss your surrogacy journey, you can speak to Anya Aidman, one of our senior solicitors specialising in surrogacy.

e: aaidman@elringtons.com.au  | p: +61 2 6206 1300