Surrogacy Laws in NSW – How does this interact with Family Law?

There is no Federal / Commonwealth Law regarding surrogacy arrangements and surrogacy law, whilst it does interact with the Federal Family Law legislation, it is state-based law.

The act that governs surrogacy arrangements in New South Wales is the Surrogacy Act 2010 (NSW). If parties intend to enter into a surrogacy arrangement, there are very strict provisions of that legislation that must be followed for the surrogacy arrangement to be held to be valid, which is required if the intended parents wish to seek a parentage order in the Family Law Court system which would legally transfer parentage from the biological parent/s to the intended parent/s. This article offers a brief overview of how that process operates.

At the outset, commercial surrogacy is illegal in Australia unless the provision of a fee, reward, or other material benefit to the surrogate is only for the reimbursement of the birth mother’s surrogacy costs (such as medical expenses etc.). This is an important public policy decision by the Australian Government to ensure that surrogacy is only for altruistic purposes and not profit-driven purposes. It is also illegal to publish to publicise surrogacy arrangements to the public, but this does not apply if the surrogacy arrangement is an altruistic surrogacy arrangement and no fee has been paid for the advertisement.

Surrogacy Arrangements

Surrogacy arrangements are defined in the Surrogacy Act 2010 (NSW) as:

1. An arrangement under which a woman agrees to become, or tries to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a pre-conception surrogacy arrangement); or
2. An arrangement under which a pregnant woman agrees that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a post-conception surrogacy arrangement).

Whilst a surrogacy arrangement cannot expressly be enforced (i.e. forcing a parent to transfer parentage) the obligation under a surrogacy arrangement to pay or reimburse the birth-mother’s surgical costs is legally enforceable but only if the surrogacy arrangement is a pre-conception surrogacy arrangement.

Surrogacy arrangement documents are complex legal documents and if such a document is intended to be relied upon by a parent to seek a parentage order, Section 36 of the Surrogacy Act 2010 (NSW) provides that for a post-conception surrogacy arrangement each of the parties must have received legal advice from an Australian Legal practitioner about the surrogacy arrangement and its implications before entering into the arrangement.

Parentage Orders

Once a surrogacy arrangement has been entered into and the child is born, even if there is an arrangement in place, it does not automatically transfer the parentage of the child to the intended parents. The birth certificate will still list the biological parents as the child’s parents.

Accordingly, the next step is to apply to the Supreme Court of NSW seeking a parentage order and relying upon the surrogacy agreement. However, there are a number of preconditions to the court making a parentage order and they include the following:

1. The court must be satisfied that the parentage order is in the best interest of the child.
2. The surrogacy arrangement must not be a commercial surrogacy arrangement.
3. The surrogacy arrangement must be a pre-conception surrogacy arrangement.
4. The intended parent must be a single person or a member of a couple.
5. The child must be under 18 and the court must have regard to the wishes of the child if the child is of sufficient maturity to express their wishes to the court.
6. The birth mother must have been at least 25 years of age when she entered into the surrogacy arrangement.
7. The intended parents must be at least 18 years of age.
8. If when the surrogacy arrangement was entered into the birth mother was under 25 years of age, the court must be satisfied that the birth mother is of sufficient maturity to understand the social and psychological implications of making a parentage order, which includes providing to the court evidence that they have received counselling from a qualified counsellor about the surrogacy arrangements.
9. Parties must show there is a medical or social need for the surrogacy arrangements which includes looking at the medical grounds as to why the parties are unable to conceive.
10. Each of the affected parties must consent to the making of the parentage order.
11. The Applicants must be residents of NSW.
12. The child must be living with the Applicants in NSW.
13. The surrogacy arrangement must be in writing.
14. Counselling must have been obtained by each of the affected persons from a qualified counsellor about the surrogacy arrangement and its social and psychological implications after the birth of the child and before consenting to the parentage order.
15. The child’s birth must have been registered with Births, Deaths, and Marriages.

Surrogacy arrangements are a very complex area of law and legal advice is essential. If you are considering a surrogacy arrangement, please contact Baker Love Lawyers on (02) 4944 3322 to make an appointment with our Accredited Specialist in Family Law, Hayden Carr.