The law relating to surrogacy is complicated and it is vital that you get advice from an expert family lawyer. Each State has its own law in relation to surrogacy. In Queensland the relevant law is the Surrogacy Act 2010 and the Family Law Act (Cth) 1975.
It is best that you see a lawyer with experience from the relevant State that you live in and also that specialises in family law.
In Queensland, since 2010 it is legal to enter a surrogacy arrangement providing that strict requirements are met, as follows:
- The agreement must be executed pre-conception and relate to an altruistic arrangement. It needs to be in writing and signed by the parties.
- No payments are permitted to be made other than the birth mother’s surrogacy costs.
- Both birth parents (surrogate and her partner) and intending parents must obtain independent legal advice and counselling.
- Surrogacy agreement must be in writing.
Once the child is born the following steps must be taken:
- The birth parents need to register the birth of the child and obtain a birth certificate with Birth Deaths and Marriages.
- A surrogacy guidance report needs be obtained from an independent and appropriately qualified counsellor. (It must be a different counsellor to the one seen before the pregnancy).
- The intended parents need to lodge with the Court an application seeking a parentage order. A parentage order is a Court order that transfers parentage from the birth parent/s to the intended parent/s as part of the surrogacy arrangement.
- The Court application is made to the Children’s Court of Queensland for a parentage order.
- The child must be at least 28 days old before an application can be filed. The application is not to be filed before the child is 28 days old and not after the child is 6 months old. This requirement can be dispensed with in exceptional circumstances if it is for the wellbeing and best interest of the child.
- The Court must not make an order unless it is satisfied that it is in the child’s best interest and for their wellbeing.
- The Court must be satisfied that the surrogacy agreement was consensual, relates to altruistic surrogacy and was entered into before the birth of the child.
- Evidence needs to be produced that there was a medical or social need for the surrogacy.
- That both parties consent to the Orders being made. The birth parents can withdraw their consent any time up to a parentage order being made.
- All parties must have received legal advice and obtained counselling before entering into the agreement.
- The Court must be satisfied that it is not a commercial surrogacy arrangement. It is an offence to be part of a commercial surrogacy.
If the Court makes the parenting order, transferring parentage to the intended parents, the parentage order may be registered with the Registry of Birth, Death and Marriages, recording the intended parents details on the child’s birth certificate.
Options if your application is unsuccessful
If you do not meet the requirements to apply for a parentage order under the Surrogacy Act Qld, you may be able to apply to the Court to seek an order for sole parental responsibility and that the child live with the intended parents. This might be the only option available if all of the criteria have not been met.
If you would like more information about surrogacy or you are thinking of entering into a surrogacy arrangement please contact our experienced family law team today for a fixed fee initial consultation.