Surrogacy

Can surrogacy arrangements be entered into?

In all Australian states and territories (except for the Northern Territory), it is illegal to enter into a commercial surrogacy arrangement within Australia. This is an arrangement whereby a couple or individual provide a fee, reward or other material benefit or advantage to a surrogate for conceiving a child and giving up that child to be raised by the couple or the individual.

It is also illegal for a couple or individual residing in NSW to enter into a commercial surrogacy arrangement outside of the state, including in a foreign country. The maximum penalty for entering into (or offering to enter into) a commercial surrogacy arrangement is a fine of $110,000 and/or imprisonment for 2 years.

Altruistic surrogacy arrangements are not illegal, however they cannot be legally enforced. For a surrogacy arrangement to be considered altruistic, the surrogate must only be reimbursed for their reasonable surrogacy costs. Section 7 of the Surrogacy Act 2010 (NSW) provides a list of the types of expenses that can be reimbursed by an intended couple or individual, including:

• medical;
• travel; and
• accommodation costs.

It is advised that intended couples or individuals seek legal advice before paying money or giving gifts to a surrogate.

Because altruistic surrogacy arrangements cannot be legally enforced, a surrogate who gives birth to the child cannot be forced to surrender a child upon birth to the intended couple or individual. In this situation, following the birth of the child, an intended couple or individual may apply to the Family Law Courts for a parenting order stating that the child is to live with them. However, the likely outcome of such an action is uncertain.

Can a couple or individual advertise for a surrogate?

It is illegal to distribute by print or online, or provide people with access to a paid advertisement, statement, or notice that:

• Suggests a person is willing to enter into, or arrange, a surrogacy arrangement;
• Seeks a person willing to act as a birth parent under a surrogacy arrangement;
• Suggests a person is willing to act as a birth parent under a surrogacy arrangement; or
• Is intended or likely to induce a person to act as a birth parent under a surrogacy arrangement.

If the advertisement is for a commercial surrogacy arrangement, the advertisement will be illegal even if no fee has been paid for the advertising. The maximum penalty for an individual is a fine of $110,000 and/or imprisonment for two years.

Not all advertising is illegal. You can advertise for an altruistic surrogacy arrangement provided you do not pay for the advertisement. If you do pay for the advertisement, and it is an altruistic surrogacy arrangement, the maximum penalty for an individual is an $11,000 fine.

Who has parental responsibility in surrogacy arrangements?

The legal parents of a child will generally have parental responsibility for the child. In NSW, when an altruistic surrogacy arrangement is entered into, the surrogate and their partner (married or de facto) are presumed to be the legal parents of the child. This will be the case even where the child does not have the DNA of the surrogate couple. The intended couple or individual will not have parental responsibility for the child and cannot legally make decisions about the child.

An intended couple or individual can apply to the Supreme Court of NSW for a parentage order that has the effect of transferring parental responsibility to the intended couple or individual. An application for a parentage order must be made between 30 days and six months after the child's birth. The application must be supported by a report prepared by an independent counsellor on whether the proposed parentage order is in the best interests of the child.

There are a number of preconditions that must be met before a court will grant a parentage order. These include:

• Each of the affected parties must consent to the order;
• The child must be living with the intended couple when the application is heard;
• There must be a written, pre-conception surrogacy agreement, signed by each of the affected parties after receiving legal advice and counselling;
• The parties must have provided the NSW Health Central ART donor register with the information about the surrogacy arrangement required under the Assisted Reproductive Technology Act; and
• The court must be satisfied that the order is in the best interests of the child.

The consent of a birth parent to the making of a parentage order will be necessary unless the court is satisfied that the birth parent has died or lost capacity to give consent, or they cannot be located after reasonable attempts are made.

To establish that a birth parent has given their consent, there must be evidence of the consent. Unless consent is given in person in court, this will require a written instrument stating that the person consents to the making of a parentage order under the Surrogacy Act in respect of the child, verified by the affidavit of an attesting witness.

A birth parent's consent must also be informed and freely and voluntarily given while they had the capacity to do so. To establish this, there will need to be affidavit evidence demonstrating;

• the legal and practical effect of their consent and of a parentage order had been explained to the birth parent; and
• the birth parent appeared to understand the explanation, to give their consent freely and voluntarily, and to have the capacity to do so.

The attesting witness should provide this evidence. The Supreme Court of NSW in AP v RD (2011) recommended an appropriately qualified legal practitioner fill this role. In that case it was held that statements in a counsellor's report that the birth parents were comfortable with the orders and 'quite informed' as to the consequences of their consent were not sufficient evidence of consent.

Each of the parties to the pre-conception surrogacy agreement must have received counselling about the social and psychological implications of the surrogacy arrangement. In addition, the birth parent and their partner (if any) must receive further counselling after the child's birth and before consenting to the parentage order. A report by an independent counsellor must be filed containing the counsellor's assessment of:

• Each party's understanding of the implications of the making of a parentage order;
• Each party's understanding of the principle that openness and honesty about a child's birth parentage is in the best interests of the child;
• The care arrangements proposed by the intended parents in relation to the child;
• Any contact arrangements proposed in relation to the child and their birth parents;
• The parenting capacity of the intended couple or individual; and
• Whether any consent given by the birth parents is informed consent, freely and voluntarily given.

In addition, each of the parties must have received legal advice from a legal practitioner about the surrogacy arrangement and its implications. The legal advice obtained by the birth parent and their partner (if any) must have been obtained from a legal practitioner independent of the legal practitioner who provided legal advice to the intended couple or individual.

An affidavit sworn by each of the legal practitioners who gave advice must accompany an application for a parentage order. Each affidavit must include:

• The name of the affected party to whom the advice was given;
• The role of the affected party;
• The date the advice was given;
• A statement that independent legal advice was given to that person; and
• The practitioner's belief that the person appeared to understand the legal advice given.

If a parentage order is made, the intended couple or individual will be recognised as the child's legal parent/s and have parental responsibility for the child. The child will no longer be the child of the birth parent/s. The child's birth certificate can be amended to reflect the intended couple's parental status. Where a parentage order is refused, intended couples or individuals have a right to appeal the decision in the NSW Court of Appeal.

What if the birth parent refuses to surrender the child?

Because surrogacy arrangements are not legally enforceable, a birth parent cannot be forced to surrender a child to an intended couple or individual. However, persons with an interest in the care, welfare and development of a child can apply to the Family Law Courts for parenting orders. An intended couple or individual may be able to obtain parenting orders that provide the intended couple or individual with parental responsibility or shared parental responsibility for a child, and/or that the child is to live with, spend time with and/or communicate with them. For more information on parenting orders, see the section above:

• Section 5: Sperm Donors - 'Can the donor be prevented from forming a relationship with the child, or having contact with the child?',

which may also apply to an intended couple or individual in a surrogacy arrangement.

When determining what parenting orders to make, a court's paramount consideration is the best interests of the child. The Family Law Act provides that a primary consideration of a court must be the benefit to a child of having a meaningful relationship with both of their legal parents. However, a court is also required to consider the nature of a child's relationship with a non-parent, and the capacity of a non-parent to provide for the needs of the child.