A recent decision of the Family Court of Western Australia has re-ignited the debate about international surrogacy agreements. Usually Family Court judgments are anonymised and cannot be reported on in the media, but in this case, the Judge made an exception.

Remember Baby Grammy (yes, it is ‘Grammy’ and not ‘Gammy’ – his Thai biological mother has confirmed). Grammy was the centre of an overseas surrogacy dispute between a Thai woman and an Australian couple. The surrogacy arrangement resulted in twins being born with Grammy having Down Syndrome. The male from the couple (and biological father of the twins) was a convicted child sex offender. The Australian couple took the other twin, a girl named Pipah, home to Western Australia where they live and Grammy remained living with his mother in Thailand.

A recent Family Court decision has permitted Pipah to remain living with the Australian couple after considering all evidence including expert evidence.

We do not intend to comment on the decision. What it does show is the complexity of how the law can deal with surrogacy arrangements, including overseas surrogacy arrangements.

The law around surrogacy in Australia is complex and different laws apply in different states and territories and each law has its own particular requirements. The Family Law Act also applies. Many international surrogacy arrangements are commercial in nature in that the surrogate is paid for by the intended parents. In many jurisdictions in Australia, commercial surrogacy agreements are illegal. In many jurisdictions, altruistic surrogacy agreements (where the surrogate is not paid) are by themselves not binding in law.

In the ACT (and in other jurisdictions and under the Family Law Act), there is a presumption in law that the birth mother (surrogate) and her partner (if any) are parents. This means that the intended parents (or the donating parents, if they are providing genetic material) would not be seen to be the parents of the child born to the surrogate, regardless of who the genetic parents are.

The intended parents can, however, make an application to a Court for a Parentage Order in their favour, in certain circumstances. This application is subject to the Court’s consideration of a number of factors.

If a Parentage Order is made, the child becomes, in the eyes of the law, a child of the intended parent or parents, and the intended parent(s) become, in the eyes of the law, the parents of the child as if the child had been born to the intended parents.

Although many countries (for example, India and the USA) allow commercial surrogacy agreements, if you live in a part of Australia that criminalises them, you would be committing a crime and could be arrested. Even if you are not arrested, you may be prohibited from obtaining a Parentage Order to declare that you are a legal parent of the child. This can be very devastating for intended parents who desire to be parents not only in the true sense of caring for a child but also legally.

These are highly complex legal issues and if you are considering entering into any kind of surrogacy arrangement, you need advice from a family law specialist, before entering into any such agreement.

Family Lawyer Anna Neilan

Anna Neilan, Family Lawyer at Farrar Gesini Dunn.