Surrogacy agreements are becoming more common in today’s society where the definition of a family is becoming more diverse than just the “nuclear family”. The law around surrogacy in Australia is complex and different laws apply in different states and territories.
In the ACT, commercial surrogacy agreements (where you pay a surrogate) are illegal and altruistic surrogacy agreements or “substitute parent agreements” (where the surrogate is not paid) are by themselves not binding in law. Further complexities arise when people enter into Surrogacy Agreements overseas. 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.
If you are considering entering into a surrogacy arrangement, you may have some questions ; Is it legal? What rights do you have if you choose a surrogate to have your baby? What rights does a surrogate have? Whose genetic material will you use? Can you have a surrogacy agreement?
Because of these complex factors, you need advice from an experienced family lawyer to assist you to make the right decision for yourself and your family.
In the ACT (and in family law), 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 recognised as 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/declaration in their favour, in certain circumstances and within a limited time frame. 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.
If you are considering using a surrogate, or are considering being one, it is important that you obtain appropriate advice from a family lawyer about your rights. If you need further information, would like some legal advice in relation to your situation, or just want to come in for a chat, contact one of our experienced family lawyers at Farrar Gesini Dunn to discuss how we can help you.