What is an Australian surrogacy arrangement?
Australian lawyer Pamela Cominos explains the surrogate process…
It is becoming more and more common for couples and single people, to seek and enter into a surrogate arrangement with a
third party, being the birth mother and sometimes her partner/husband where they are unable to conceive naturally because of medical or social reasons.
Some 20 years ago the average age a woman gave birth to her first child was 25 years of age, today it is 35 years. Today we also have an increase in the breakdown of marriages and de facto relationships, it is understandable that couples entering their 40’s have not had children and find that they may be unable to conceive themselves and hence the option of surrogacy is considered by many.
In New South Wales, the Surrogacy Act 2010 is the legislation that governs surrogacy and the power to deal with these issues is vested in the Supreme Court of New South Wales.
What is a Surrogacy Arrangement?
A surrogacy arrangement refers to an agreement whereby a woman agrees to become pregnant with a child, and that the parentage of the child, once it is born is to be transferred to another person or persons, this is known as a pre-conception arrangement.
A surrogacy arrangement can also be entered into after the birth mother becomes pregnant, known as a post-conception surrogacy.
The ability to enter into a surrogate arrangements is open to gay and lesbian couples should they wish to partake in this agreement.
The legislation requires that for a parentage order to be granted there must have been “a medical or social” need for the surrogacy arrangement. To meet this requirement, where a woman single or as part of a couple, must be unable to conceive or carry a child on medical grounds or likely to conceive a child affected by a genetic condition. A single male or a male couple will automatically meet the requirement of “medical or social need” because they cannot conceive without the assistance of another party.
Can you pay someone to become a surrogate mother/birth mother?
Since June 2011, it is illegal to enter into a commercial surrogacy arrangement, to do so attract fines and possible prison time.
The only payments that can be made to the birth mother are the medical costs associated with the pregnancy and birth of the child. These costs must be reasonable, they must be incurred and the amount can be verified by receipts or other evidence. Reasonable travel costs incurred by the birth mother or loss of income earnings, being no more than 2 months after the birth or during the pregnancy if the birth mother is unable to work on medical grounds related to the pregnancy.
Legal Advice is required
It is important to be aware that prior to entering into a surrogacy arrangement the birth mother (and partner) must seek independent legal advice to fully understand the ramifications of their decision to enter into a surrogacy agreement.
Further the surrogacy agreement must be in writing signed by all interested parties.
Transfer of Parentage from the birth mother to intended parent/s
The application to transfer parentage can be made from 30 days until 6 months after the birth of the child and requires the consent of the birth mother. Whether the transfer of parentage is granted will be based on the best interests of the child and an application to transfer parentage must be supported by an Independent Counsellor’s Report.
This is a very dynamic area of law, should you require legal advice contact a legal practitioner with knowledge in this field, as the above information is intended as general information only, and should not be relied upon for individual circumstances.
Pamela Cominos
Principal of Cominos Lawyers
16 August 2013
