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Insights

In Australia, commercial surrogacy is a criminal offence in all states and the Australian Capital Territory. However, altruistic surrogacy is permitted in all of the states and the Australian Capital Territory. The Northern Territory does not have any laws regulating surrogacy.

In Tasmania, the surrogate must have given birth before and she must be at least 25 years of age. In Western Australia, the couple must be heterosexual and unable to conceive or if they were to conceive the child may be affected by a genetic abnormality or disease.

In 2010 NSW introduced the Surrogacy Act 2010, however, parentage orders are still fairly rare. This is because, for most people, it is a struggle to find a surrogate, Section 10 of the Act makes it a criminal offence to advertise for a surrogate.  It is most common for people to rely on members of their family or close friends to be a surrogate.

In the recent case of Mason v Mason and Anor [2013] FamCA 424 a homosexual couple entered into a surrogacy agreement with a woman in India. The biological and birth mother did not seek to have a role in the children’s lives and affirmed that the couple would give the children a good life in Australia.  In considering what would be in the best interests of the children for Parenting Orders, Judge Ryan held that despite the fact one of the men was the biological father of the twins, there is no presumption in favour of a biological parent, each case is to be decided on its own facts with the welfare of the children being the paramount consideration. Judge Ryan held that this couple were astute to the challenges that lay ahead and were “as well equipped as anybody could be to meet them”. Parenting Orders were made in favour of the couple, though a declaration of parentage was not permitted.

In Groth v Banks [2013] FamCA 430 there was a dispute about whether the biological father was a parent. The child concerned was conceived as via IVF.  The mother submitted that the biological father was not a “parent”.  She relied upon Section 15 of the Status of a Child Act 1974 (Vic) which creates an irrebuttable presumption of law that if a woman becomes pregnant via IVF and a child is born, the man who produced the semen is not the father.  However, this law clashed with the Federal law and as per Section 109 of the Constitution the Federal law prevailed.  Here, the father was a “parent” but an interpretation of “parent” is open and allows for each case to be decided on its own particular facts.  It was noted that the “over-arching” consideration was to make Parenting Orders that were in the best interests of the child.  It was found that although the party had communication problems, they were thoughtful, intelligent people who were child focused.  As such, orders were made declaring the father as a “parent” and giving the mother and father equal shared parental responsibility concerning the major long term decisions for the child.

Altruistic surrogacy, although now legal in Australia, is highly regulated and the process is complicated and lengthy. There are strict requirements when entering into any surrogacy agreement and the conduct of the intended parents during the pregnancy. Couples must be careful and abide by the legal requirements or else the Court may refuse to make parentage orders and the intended parents may find that they have no rights to the child.