Altruistic Surrogacy Arrangements
Surrogacy is an arrangement whereby a commissioning couple (known as the intending parents) enter into an arrangement with a woman (the surrogate mother) who will carry their child. The surrogate mother will then surrender the child to the intending parents upon birth. Altruistic surrogacy occurs when the surrogate mother is not paid a fee or reward beyond being reimbursed her costs of the pregnancy. Each of the States and Territories, except the Northern Territory, has legislation dealing with altruistic surrogacy.
Altruistic surrogacy arrangements are not illegal in Australia, but the law is by no means straightforward. While it is not unlawful to enter into an agreement for an altruistic surrogacy arrangement, such agreements are not enforceable, meaning that the surrogate mother cannot be compelled to surrender the child to the intending parents at birth. For the intending parents, the primary legal concern is who the parents of the child are in the eyes of the law. Intended parents in altruistic surrogacy arrangements, whilst not initially legal parents, may become legal parents if they access a “parentage order”.
To date, Australian Law has not kept pace with the progress of society on these matters. The requirements differ in each State and Territory of Australia. Therefore, it is always advisable to seek specialist legal advice from a Reproductive Lawyer before entering into an arrangement. By doing so, you will see whether your proposal and fact scenario will entitle you to a parentage order and become a legal parent.
The law in relation to altruistic surrogacy arrangements is complex and very few lawyers possess specialist knowledge of this area of law. The lawyers at Boers Associates are amongst Australia’s leading experts in the field of reproductive and surrogacy law. The right time to seek legal advice regarding surrogacy is in the planning stage. The reason is, your lawyer can advise you of available options and assist in laying the groundwork for a successful surrogacy arrangement.