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Starting a family is an exciting and nerve-wracking time for any new parent. However, individuals seeking to enter into a surrogacy agreement for the conception and birth of their child can face additional hurdles.

There can be issues that arise as to who is the legal parent of a child born as the result of a surrogacy arrangement. In some circumstances, the birth parent, and their spouse (if any) are presumed to be the legal parents of the child, despite the intended parent(s) clear intention to be the child’s parent(s). Issues can also arise relating to enforceability of the agreement and the overall cost of the process.

In order to become the legal parents of a child born as a result of a surrogacy arrangement, the intended parent(s) must seek a transfer of parentage so that the birth parent(s) do not remain the child’s legal parent(s).

To seek a transfer of parentage, the intended parent(s) must comply with various requirements under state law, some of which are set out below:

  • The parties must undergo counselling with a qualified counsellor.
  • There must be independent legal advice given to each party prior to entering the agreement.
  • The surrogacy arrangement must be registered.
  • A surrogacy agreement must be entered into prior to conception of the child.
  • There must be a medical or social need for the surrogacy agreement. This may include a single intended parent who cannot conceive or give birth to a child, a same-sex couple, or a couple who cannot conceive or give birth to a child for medical reasons.
  • The child’s birth must be registered.
  • An application for a parentage order must be made no less than 30 days and no more than 6 months after the child’s birth.
An Example of How Issues Can Arise

The issues that can arise when entering into surrogacy agreements were highlighted in the recent case of Tickner & Rodda [2021] FedcFamC1F 279. In this case, the applicants, namely Mr Tickner and Mr B Tickner entered into a surrogacy arrangement with the respondent. The applicants and respondent met online, but were otherwise strangers. The surrogacy arrangement provided that the respondent would carry the child, Mr Tickner would provide the sperm, and an acquaintance of the applicants would donate their egg. The respondent had no genetic relation to the child.

The respondent told the counsellor that she had terminated the pregnancy and surrogacy agreement. However, the respondent did not terminate the pregnancy and the child was born. In this case, the unenforceable nature of and difficulties with surrogacy arrangements were noted, especially where the parties are strangers.

Here, the best interests of the child were considered by the court. It was found that as Mr Tickner provided his sperm for the conception on the basis he would be the child’s parent, he was one of the child’s legal parents and that Mr B Tickner was a person interested in the welfare of the child. The court noted that as the child grows older, he would likely want to know more about the person who gave birth to him. Therefore, the applicants were granted equal shared parental responsibility for the child with the child to spend time with the respondent as agreed between the parties.

The application for a parentage order was adjourned for further consideration.

It is important that when entering into a surrogacy agreement, all of the parties receive legal advice in relation to the effects of the agreement, especially the intended parents, so that they can be in the best position to grow their family with minimal hurdles.

If you are considering entering into a surrogacy agreement or need any advice in relation to surrogacy matters, please contact our office to arrange an appointment with one of our experienced family lawyers.