ACT transitional surrogacy case

It was an honour to appear in a recent case in the Australian Capital Territory, the first reported decision concerning the transitional provisions of the Parentage Act 2004 (ACT). In 2024, the Parentage Act was amended. When the ACT Government was looking at amending the Parentage Act in 2023, I and many others made submissions about the need for change. In my view the Parentage Act was creaky. While it was groundbreaking when it was enacted in 2004, being the first Australian law to regulate surrogacy, by the 2020’s it was decidedly creaky. The Parentage Act did not discriminate based on sexuality, but it:

• Did not allow singles to become parents through surrogacy
• Did not allow the surrogate to be single.
• Did not allow traditional surrogacy
• Did not allow IVF to occur anywhere outside the ACT.

The ACT Attorney-General said of the changes:

“… This is a significant bill in what it does to harmonise with other jurisdictions to improve the experience for all those involved in the surrogacy arrangement, to recognise the diversity in family relationships and surrogacy arrangements and to remove discrimination and to reduce barriers.

To summarise, the Bill includes allowing single people to become intended parents, removing the requirements in the Parentage Act that one intended parent must be a genetic parent of the child, allowing for traditional surrogacy where a surrogate provides their own egg and is a genetic parent. This provides additional flexibility recognising the diverse situations where people may choose to enter into altruistic surrogacy arrangements. It’s about removing the requirement that the child is conceived as a result of a procedure carried out in the ACT. Instead, it requires that the intended parents must be living in the ACT when they apply for a parentage order. This measure will enable parties in surrogacy arrangements to have flexibility about how and where conception occurs and to use services of their choice.”

In the recent case of Re an application under the Parentage Act 2004 [2025] ACTSC 294, I had the honour of representing the intended parents, a gay couple, in the first reported case of the transitional provisions under the Parentage Act following the 2024 Amendments. The transitional provisions allow for those cases where a parentage order should be able to be made, but was unable to be made, because the surrogacy journey was outside the old rules.

The surrogacy journey was outside the old rules because:

• The IVF was undertaken outside the Act, in NSW
• The surrogate was a traditional surrogate, i.e., she was the genetic mother.

Acting Justice Muller said: 

“The surrogacy arrangement entered into between the parties was one in respect of which each parent group received independent legal advice. The arrangement was documented in extremely thorough terms and demonstrated an exploration of, and agreement about, the range of issues that may arise in the context of a traditional surrogacy arrangement.” (emphasis added).

 His Honour had no hesitation in making the parentage order, as:

“In this case:

(a)       the child has been brought into the world after careful planning by his presumed parents and his intended parents;

(b)       that plan was born of a strong desire held by both of the intended parents to have an opportunity to parent a child of their own, fully supported by the altruistic intent of the presumed parents;

(c)       the plan was brought to fruition with the birth of the child;

(d)       since his birth the child has resided with his intended parents in a loving family environment; and

(e)       that life is the only life he has known

Those matters lead me to conclude that the parentage order which is sought is in the best interests of the child.”