Surrogacy

Individuals and couples who cannot otherwise conceive a child naturally nowadays have access to a range of different services to achieve their dream of having children, such as IVF, adoption, and surrogacy. 

Along with emotional and financial implications, consideration must also be given to the legal implications before choosing the surrogacy path.

Surrogacy comes in a variety of forms, from traditional to commercial.  It is also available to same sex couples, as opposed to adoption.  Similarly, single people, male or female, can also enter into a surrogacy arrangement as either intended parents, or birth parent(s).

On June 2010, the Queensland government commenced regulating surrogacy in Queensland.

The effect of this legislation was twofold:   

• Firstly, it allowed for the birth certificate of children to be amended to allow intended parents to be named as birth parents of children born of a surrogacy arrangement, provided that arrangement meets strict requirements. 
• Secondly, it made illegal commercial surrogacy arrangements, including providing medical assistance to commercial surrogacy arrangement, and other activities such as advertising.

Basically, for a surrogacy arrangement to be accepted by the Courts in Queensland, and therefore be able to obtain a parentage order allowing the child’s birth certificate to be changed, there are eight steps that need to be adhered to:

1.  There needs to be a medical or social need for the surrogacy arrangement.  

2.  Prior, independent legal advice must be obtained in relation to the surrogacy arrangement.

3.  Prior counselling must be obtained by all parties to the surrogacy arrangement.

4.  The arrangement must be in writing, signed by all parties and preferably dated.

5.  The child is conceived and born

6.  The parties obtain further counselling after the birth, and obtain a surrogacy guidance report

7.  The parties make the Application to court for a parentage order

8.  The Parentage Order is obtained and filed with the Registry of Births, Deaths and Marriages.

Each step has specific requirements and it is important to remember that if some steps are omitted, or conducted prior to others, the surrogacy arrangements may not be accepted by the Court and you may not be able to obtain a parentage order.

As a specialist family law firm, we encourage clients to explore all options to resolve their situation through the methods of collaborative practice.  When considering a surrogacy arrangement, it is critical to consider the choice of lawyer to have involved.

There is very little which is enforceable in a surrogacy arrangment, and if a lawyer advises a client without consideration to the harm that may cause to the relationship between the parties to the surrogacy arrangement, the result may very well lead to a failure of the arrangement. 

For intended parent(s) who are lucky enough to find a person willing to act as a birth mother for them, the choice of counseller and lawyer is imperitive to ensure that relationship stays strong and intact.

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