Non commercial surrogacy agreements are now legal in Queensland.
We are fortunate our team has been involved in this fascinating area of law. Our family law team was one of the first Cairns family lawyers to prepare a Surrogacy Agreement. We met with the medical team and the counsellor. Currently, there is a case listed for hearing in the Family Court at Cairns about a Surrogacy Agreement “gone wrong”. We were not involved in the drafting of this Agreement. In that matter, there is an interim order which has placed the baby with the intended parents. Our family law team will continue to update this article as to the progress of that case.
Non-commercial surrogacy became legal in Queensland under the Surrogacy Act 2010, which commenced on 1 June 2010.
Prior to that date, any surrogacy arrangement made in Queensland was not lawful.
What is Surrogacy?
Surrogacy is when a woman (the birth mother or the surrogate mother) carries and gives birth to a baby for another person or couple (the intended parent/s), who then raise the child as their own.
Commercial surrogacy is illegal in Queensland.
The birth mother can be reimbursed for her reasonable expenses associated with the surrogacy arrangement, such as medical, legal and counselling costs. These expenses will be specific, allowable expenses, deemed to be reasonable.
It is common for birth mothers to be sisters, family members or close friends of the “intended parent/s”, who are otherwise unable to have a child.
The surrogate mother would be:
- A consenting woman over the age of 25 years;
- Has had reasonably straight forward prior pregnancies and births; and
- Has already had children (indicative of being fertile).
An intended parent is:
- Any person or couple, including same sex couples, provided he/she is over the age of 25 years and has a medical or social need to parent; and
- Is a resident of Queensland.
What is the procedure for a Surrogacy Agreement in Queensland?
- All “birth parent/s” and “intended parent/s” obtain legal advice.
- All “birth parent/s” and “intended parent/s” obtain counselling.
- A written Surrogacy Agreement is prepared and signed by all parties and all parties must receive independent legal advice.
- The child is conceived.
- The birth mother has the same rights as any other woman to manage her pregnancy.
- The child is born. At this point in time, the child is legally the child of the birth mother.
- The birth parent/s must register the child’s birth.
- A counselling report is obtained.
- The intended parent/s make an application to the Children’s Court for the parentage of the child to be transferred.
- The Children’s Court must be satisfied on a number of matters prior to making an order transferring parentage:
- There was a social or medical need for the arrangement.
- All parties have had counselling.
- All parties have had independent legal advice.
- The transfer of parentage is in the best interests of the child.
- After the order is made transferring the parentage of the child, the intended parent/s become the child’s legal parent/s.
The Benefits of Surrogacy Agreements
It is an alternative option to adoption.
People choose surrogacy for a number of reasons including:
- Failed IVF;
- Same-sex relationship; or
Risks of entering into a Surrogacy Agreement
The arrangements are based upon the consent and continued consent of all parties. Neither party is bound by the terms of the agreement. A party’s default requires consideration under the Family Law Act. The intended parent/s cannot force the birth parents to hand over the child after the birth.
The birth parents cannot force the intended parent/s to proceed with a parentage order. It is possible that the birth parent could be left with the responsibility of a child they never intended would be their own.
Why choose our team to consult about Surrogacy Agreement?
Family lawyers write blogs about surrogacy arrangements. Please do your research and ask those lawyers whether they have prepared a surrogacy agreement and acted for any of the parties.
When the arrangements go sour, a young baby is at the centre of the dispute.