So what is surrogacy. Surrogacy is where the intended parents much establish that there is a need for the surrogacy whether that is a medical or social need such as medical infertility, inability to a pregnancy or health risks before proceeding with a surrogacy. The social need for surrogacy also includes the intended parents are a male or female de facto couple or single male or female. A medical need can be that if a woman conceives a child then the child would be affected by a genetic condition or disorder or the child’s health or life would be at risk by the pregnancy or birth or where the woman is unlikely to survive the pregnancy or birth or her health would be significantly affected.
It must be noted that every state in Australia and also overseas have different requirements and we should make sure we are only talking about surrogacy arrangements that are for Queensland.
The woman who carries the child is referred to as the surrogate mother or the birth mother or surrogate birth mother.
The surrogate mother, like any other pregnant woman, has the ultimate choice on how her pregnancy is carried out.
Before the surrogate becomes pregnant, there must be a surrogacy agreement.
The surrogacy agreement must be:
- In writing
- Entered into prior to the pregnancy;
- The subject of independent and/or certified counselling for all parties both prior to pregnancy and after birth but prior to the parentage transfer;
- The subject of independent legal advice
- Supported by a report of a designated counsellor and which must include explicit approval of the parentage transfer;
What are the risks of surrogacy? There is one major one. If it all goes wrong and either the intended parent do not wish to have the child or the surrogate refuses to hand over the child, the surrogacy arrangement is still unenforceable so neither party can rely on the written agreement to enforce the arrangement. It will then be up to one of them to make an application under the family law act for Orders relating to the child and who the child should live with and spend time with. Of course, that decision is still based on the best interests of the child.
The only thing that is enforceable is the birth mother’s reasonable surrogacy costs to be paid by the intended parents. The birth mother should not be out of pocket for expenses related to the surrogacy if she has complied with the surrogacy arrangement and relinquished the child and consents to the making of the parenting order.
If either the birth mother or intended mother are in a relationship (either married or de facto), then their partners must also be part of the surrogacy arrangement or agreement.
There are 2 types of surrogacy arrangements:
- Commercial surrogacy; and
- Altruistic surrogacy.
Commercial surrogacy is defined differently between the states and territories. However, generally commercial surrogacy is defined as the surrogate mother receives a material benefit or advantage from entering into the surrogacy arrangement, such as monies in payment for carrying the child. Commercial surrogacy is banned throughout Australia.
Altruistic surrogacy is defined as where the surrogate mother is not paid for carrying the child. However, the intended parents are to pay for the surrogate mother’s legal fees relating to the surrogacy arrangement and the medical expenses for the surrogate mother relating to the pregnancy.
It is also illegal for parties to advertise that they are willing to be a surrogate mother or are looking for a surrogate mother.
It should also be noted that the surrogacy arrangement or agreement is not legally binding and either party can withdraw their consent even right up until the child’s parentage is transferred from the surrogate mother (and her partner) to the intended mother (and her partner). The only thing that is enforceable is the birth mother’s reasonable costs.
There are two different ways in which surrogacy can be carried out:
- Traditionally where a woman carries a child for another person or a couple then simply relinquishes the child after giving birth.
- Gestational surrogacy is a far more recent thing where IVF is used to enable the surrogate mother to act as a gestational carrier of an embryo that has been produced from the eggs of another woman and the sperm of the intended father.
There are a number of steps to be taken before the child’s parentage is transferred to the intended parents:
- All parties (both mothers and their partners) must obtain counselling from an appropriately qualified counsellor before making the surrogacy arrangement. The parties can attend the same counsellor and appear to do so generally. Counselling is to ensure all parties understand the social and psychological implications of the arrangement and the parentage order obtained after the child is born. A report is then prepared.
- All parties must obtain independent legal advice before making the surrogacy arrangement so that they full understand their rights and obligations and the implications of the arrangement. The surrogate mother and her partner obtains the legal advice from one lawyer and the intended parents obtain legal advice from another.
- The surrogacy arrangement cannot be signed until the parties obtain independent legal advice and the report from the counsellor.
- After the child is born, the parties again attend counselling and obtain a Surrogacy Guidance Report from an appropriately qualified independent counsellor. This counsellor cannot be the same as the previous counsellor. This report provides guidance and hopefully support for the child’s parentage to be transferred to the intended parents.
- As is usual, the surrogacy mother and her partner register the child’s birth and the parents are themselves.
- Once the parties have received that counselling, they can then apply to the court for the parentage to be transferred to the intended parents. The child must be at least 28 days of age and no more than 6 months of age when the application is done. The child must have lived with the intended parents for at least 28 days before the application is filed and all parties must be Queensland residents. There are a number of affidavits to be completed for the application:
- 1 of each of the parties;
- 1 of each of the solicitors;
- The 2 counsellors who provided counselling;
- If there is a medical need for the surrogacy to occur, then a report from the doctor in this regard;
- Copy of the child’s birth certificate;
- At the hearing of the application, submissions are to be made on the requirements of the Act.
Whilst many people have tried to undertake surrogacy overseas it is actually illegal to do so as parties must be resident in Queensland.
One of the difficulties with the laws being so different throughout Australia is the penalties with regard to commercial surrogacy range from $4000 to $110,000 and from 1 to 3 years jail depending on which state the offence is committed in. The other difference is that whilst overseas surrogacy is illegal in Australia, it is only New South Wales that has prescribed criminal penalties to commercial surrogacy completed overseas.
The application to transfer parentage is made to the Children’s Court in Queensland,
The medical profession will consider in supporting the arrangement:
- The intended parent has a medical disorder that makes it impossible or unacceptably dangerous to carry a baby;
- The birth mother is older than 25 and younger than the age of natural menopause (which is assumed to be 52 years of age) or this can be raised to 55 where the gestational surrogate is the mother or mother in law of the intended parent.
- The birth mother has already given birth to a health child of her own
- The birth mother does not have a history of pregnancy related illnesses or complications
- The birth mother has had an established relationship with the intended parents for at least 1 year before embryo is transferred
- Neither party suffer from any significant psychiatric disorder that would impair decision making or the care of the child