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

Surrogacy in the ACT

A surrogate is a woman who carries a pregnancy for a person who cannot fall pregnant themselves due to medical reasons.  A surrogate has no genetic link to the child. An ‘embryo’ is transferred into the surrogate’s uterus using an egg and sperm produced by the intended parents.  It offers people the possibility of parenthood.

Some important things to know about Surrogacy include:

  • You must find your own surrogate privately. You cannot advertise for someone to be your surrogate, nor can a surrogate advertise to be a surrogate.
  • You cannot pay a surrogate for their service, nor can you give them any kind of reward or benefit. You can only compensate the surrogate for any reasonable expenses incurred with the pregnancy, such as any medical, travel and accommodation expenses. In addition the ACT Parentage Act 2004 extends the prohibition on entering commercial surrogacy arrangements to arrangements entered into outside the jurisdiction (ie. overseas arrangements).
  • The intended parent must have a medical reason for undertaking a surrogacy process, and must have tried all other means for falling pregnant prior to considering surrogacy.
  • The surrogate, surrogates partner and intended parents must obtain independent advice / counselling from:
    • A gynaecologist as to their medical history and suitability for the surrogacy procedure and possible medical risks involved with undergoing the procedure;
    • A registered psychologist addressing the psychological and marital implications of the process,  including implications for relationships and any other children of the relationship and to address the possibilities of medical complications arising out of the process
    • A lawyer regarding the parentage laws surrounding surrogacy and what this means for any child born to a surrogacy process, and what the surrogate’s rights are, and intended parent’s rights are at law.
    • Once parties have received independent advice and counselling from the relevant people, parties must receive approval through the Human Research Ethics Committee (“the Ethics Committee”) prior to the surrogacy process commencing.

People contemplating surrogacy must understand that the surrogacy agreement is not enforceable.

People should still formalise the arrangement in writing due to the complexities involved and to avoid arguments arising in the future.

Surrogacy is a very complex process. If you are considering a surrogacy arrangement and need advice concerning the process or assistance with the drafting of a Surrogacy Agreement please contact:

Anya Aidman

e: aaidman@elringtons.com.au | p: 02 6206 1300

Is a Surrogate a Parent of a Child?

A women who carries a pregnancy for another person is called the ‘Surrogate’.

When the child is born, the surrogate is the legal parent until such time as a parentage order is made by the Supreme Court of the relevant state or territory.

For example: Cathy and Jack cannot have a baby due to medical reasons. One of Cathy’s good friends, Angela has offered to be their surrogate.  Angela’s Husband Bob, has agreed to this arrangement.  After going through the surrogacy approval process, an embryo is fertilised into Angela by using Jack’s sperm and Cathy’s eggs. Angela falls pregnant and 9 months later, Angela gives birth to a baby boy. Cathy and Jack have decided to call him Harry.

At law, Harry’s parents are Angela and Bob even though they are not the biological parents (or intended parents). Angela and Bob will be put on Harry’s birth certificate as his parents.

The relevant state and territory legislation involving surrogacy (Parenting Act 2004 (ACT) and Surrogacy Act 2010 (NSW)), provides that the intended parents (Cathy and Jack), are able to apply to the Supreme Court for a parentage order. Cathy and Jack would apply for an order to transfer the parentage of Harry from Angela and Bob to Cathy and Jack. If the application is successful, Cathy and Jack will be the legal parents of Harry and will be able to apply to Birth Deaths and Marriages to amend Harry’s birth certificate.

If you are considering a surrogacy arrangement it is very important to get legal advice, whether you are the intending parent who wishes to use a surrogate or are the surrogate, you need to know how the law relating to surrogacy will affect you and your partner.

We can assist you with the surrogacy process, or with applying to the Supreme Court for a parentage order.

For more information, contact:

Anya Aidman

e: aaidman@elringtons.com.au | p: 02 6206 1300

Woman Loses Family Court bid for Baby to Dead Partner

In a recent judgement delivered this week[1], Justice Watts of the Family Court of Australia says he had no choice but to refuse a woman’s application seeking access to the frozen sperm of her deceased partner.

Ms Vallance and Mr J were in a relationship for a period of less than two months and did not live together. Shortly before the pair met, the deceased (“Mr J”) was diagnosed with non-hodgkin lymphoma. Prior to the commencement of his treatment and before he met Ms Vallance, Mr J deposited and stored his semen for use in the future.

The couple formed a relationship during Mr J’s successful chemotherapy, however, the cancer treatment took a toll on the man’s health and he later committed suicide.

Subsequently, Ms Vallance, with the support of Mr J’s sister, Ms Marco, (the executor of his estate) asked the clinic to release his sperm. The clinic said that as no partner was listed on Mr J’s signed consent to have his semen frozen; a court order would be required before they could release the sperm.

Justice Watts said that notwithstanding the evidence that in the period before his death, Mr J and Ms Vallance discussed between themselves and family members the intention to marry and start a family; he had no alternative but to dismiss the application as the Family Court did not jurisdiction.

Justice Watts says that the court is limited to considering only matrimonial, de-facto, property and children’s matters.

It may be that the frozen sperm specimen can be treated as property… the difficulties in this case are that firstly…the parties at no time lived in a de facto relationship… Secondly, the relationship between Ms Vallance and Mr J did not break down…thirdly Mr J was not alive at the date Ms Vallance filed her application.”

Further, the legislation relating to children is only enlivened once a child is born.

If there is any power to entertain Ms Vallance’s request for the orders sought, it must lie in State law. It might for example, be that Ms Marco is entitled to Mr J’s frozen semen specimen as the executor and trustee of his estate…accordingly I have no alternative but to dismiss the application”.

The lawyer for Ms Vallance made reference to another case[2] where an urgent application was brought in the Supreme Court of Queensland by the wife of a man who was killed in a car accident earlier that day. The wife sought an Order from the Court allowing the removal of sperm from the deceased husband. The Court authorised the removal of any testes and spermatozoa from the deceased and authorised the storage of the sperm obtained pending a future application to the Court for the use of that sperm.

For more information about Family Law or to make an appointment with a Family Law Solicitor contact:

Carlos Turini
Family Law Accredited Specialist

p: (02) 6206 1300 | e: cturini@elringtons.com.au

 


[1] Vallance & Marco [2012] FamCA 653 – August 2012.

[2] Re Floyd [2011] QSC 218

Surrogacy – Decisions in the best interest of the child

In June 2011, Justice Garry Watts of the Family Court in Sydney ordered that a Queensland couple were the parents of two boys born to a surrogate mother in Thailand.[i] However, Justice Watts ordered that the Office of Public Prosecutions in Queensland consider whether the couple should be prosecuted for entering into a commercial surrogacy agreement, which is illegal in all states and territories in Australia.[ii] There are different punishments in different states, however, in this matter, the commercial surrogacy carries a maximum three-year gaol sentence.[iii]

The court made a parental order under section 65G of the Family Law Act 1975(Cth) even though the applicants would have would have been unsuccessful in acquiring such an order under Queensland’s Surrogacy Act 2010.  Justice Watts made the parental orders on the basis that it was in the best interest of the children because the Thai birth mother had clearly indicated she wanted to relinquish her rights and obligations in relation to the children and the children ‘need to live with someone and be looked after by someone’[iv]. Additionally, the Judge considered the fact that the two children had another sibling born to a surrogate mother whom they considered to be a brother.

While the Judge found that it would be in the children’s best interest for them to ‘be looked after by someone’, the Judge did not hesitate in referring the matter to Queensland’s Director of Public Prosecution where it is possible that the parents would be gaoled for three years.

Altruistic surrogacy has been legal in the ACT for some time, however surrogacy laws have been recently amended in both Queensland and New South Wales where it is now legal to undertake an altruistic surrogacy. The Surrogacy Act 2010 (NSW) provides a process whereby a child born pursuant to a surrogacy arrangement may be the subject of a parentage order in NSW.  If a parentage order is made, the effect is that the child’s birth certificate is altered so that biological parents are listed as the parents as opposed to the birth parents.

Similarly, in the ACT under the Parentage Act 2004 (ACT) the court must make parentage order if the court is satisfied that;

(1)    The making of the order is in the best interest of the child; and

(2)    Both birth parents freely, and with a full understanding of what is involved, agree to the making of the order.

NSW and the ACT have differing procedures and requirements for a parentage order to be made. For instance, in New South Wales it is mandatory that a surrogacy agreement is in place and in writing prior to conception. There are differing health and counselling requirement depending on the jurisdiction.  Further, while it is illegal in Australia to have any type of commercial arrangement, it is a further offence in ACT to advertise for a commercial surrogacy.

The legal requirements involved with surrogacy are extremely complex. elringtons has been specialising in surrogacy law for a number of years and is able to give comprehensive advice on all steps in the process in both the ACT and NSW.

In particular, elringtons has expertise in:

  • Preparing written surrogacy agreements
  • Organising the requisite counselling and health appointments and reports
  • Appearing in court for Parentage Orders

If you have any questions, please contact our Accredited Family Law Specialist:

Carlos Turini email: cturini@elringtons.com.au

or Contact our Family Law team on: 02 6206 1300


[i] Dudley and Anor & Chedi [2011] FamCA 502.

[ii] Louise Hall, ‘Surrogacy couple win right to babies face prosecution’, The Sydney Morning Herald July 28 2011 http://www.smh.com.au/national/surrogacy-couple-win-right-to-babies-but-face-prosecution-20110728-1i155.html

[iii] Surrogacy Act 2010 (Qld).

[iv] Dudley and Anor & Chedi [2011] FamCA 502, [40].