Surrogacy

Surrogacy arrangements are advisable whenever an individual or couple seek another party to carry a child for them as the intended parents.

Commercial surrogacy is not permitted in Australia. Only ‘altruistic’ arrangements – where a surrogate agrees to help an intended parent for no financial reward – are permitted.

In most states and territories of Australia, a court order is required to transfer the parentage of a baby born through a surrogacy arrangement to the intended parent/s. Those parents must meet certain requirements under the relevant surrogacy law before entering into an arrangement, and a court could refuse the order if those requirements are not met.

Before embarking on surrogacy, any arrangements need to be carefully written and formalised with the help of expert legal advice to avoid a later court battle between the intended parents and the birth mother.

This point is particularly important because surrogacy arrangements are not legally enforceable. Either party may change their minds before a parentage order is made by a court.

A court, however, may enforce that part of an arrangement dealing with the birth mother’s reasonable surrogacy costs. The terms of the arrangement may also be significant evidence in a later court dispute over the intentions of the parties.

Melbourne Fertility Lawyers has advised more than 1700 people on surrogacy arrangements, including both for traditional surrogacy – where the surrogate mother conceives through her own eggs and sperm from an intended father or donor – and gestational surrogacy, where the surrogate carries an embryo created from an egg provided by the intended mother or another donor.

Donor Agreements

Like surrogacy arrangements, agreements covering donors of eggs or sperm to those experiencing fertility problems are not legally enforceable in Australia.

But the fact an arrangement was made can provide invaluable evidence in any resulting dispute about the intentions of the parties involved in the donor arrangement.

Donors can be sourced in various ways. While some intended parents will rely on friends or others they know, perhaps through a shared resource dealing in fertility issues, others might be more arm’s length through fertility clinics.

In either situation, an agreement should be formed covering the rights, obligations and reasonable costs of both donor and recipient.

Typical issues addressed in such agreements include health disclosures by the donor relating to such things as genetic conditions and predispositions to illness, whether the donor will play any role in the child’s life or be known to the child, and what dispute resolution procedures exist should there by a later dispute about parentage or any terms of the arrangement.

Again, proper legal advice from experts in the field should be sought, in addition to important elements in the process such as counselling.

How do International Arrangements Work?

Some people may find it easier to source a surrogate or a donor overseas, but should be aware that the legal picture becomes even more complex when international arrangements are entered into.

Fertility Lawyers Melbourne relies on experience helping clients form international surrogacy and donor arrangements with surrogates and donors in more than 30 countries around the world.

Such arrangements can be subject to overlapping laws of multiple jurisdictions, meaning knowledgeable legal advice is required. An agreement might need to comply with international law and treaties, surrogacy laws in other countries, as well as our Commonwealth and state laws in Australia.

Commercial surrogacy arrangements with citizens of foreign countries cannot be entered into by residents of Queensland, NSW and the Act. Most state-based surrogacy laws in Australia define commercial surrogacy as ‘the provision of a fee, reward or other material benefit or advantage to a person for the person or another person’.

A key reason for expert legal advice when it comes to international arrangements is that intended parents of children born to surrogates overseas do not have the automatic right to be recognised as legal parents under Australia’s Family Law Act 1975.

In addition, a child born overseas to an Australian citizen does not automatically become a naturalised citizen. The intended parent/s must apply for them to become an Australian citizen by descent. To do so will require proof that the child is the biological child of one of the intended parents.

Intended parents can have difficulty achieving a transfer of parentage where state laws do not recognise certain international arrangements, such as an international commercial surrogacy arrangement made by parents who live in Queensland, for example.

Fertility Lawyers Melbourne has the knowledge and experience to guide people in the right direction when it comes to complex international surrogacy arrangements. We have advised clients on such agreements on surrogacy or donation from diverse countries all over the globe.

The Importance of the Right Legal Advice

People determined to be parents can invest a lot of time and money in finding and joining with a surrogate or donor in their quest to become parents.

It’s important to get arrangements with surrogates and donors right the first time to avoid later legal problems, and this can be hard to do when the legal issues involved in fertility issues have been described as ‘a minefield’.

Fertility law is complicated by state and territory laws interacting with Commonwealth and international laws, depending on the arrangement entered into.

People who may already be emotionally vulnerable due to the nature of the quest can find this legal environment daunting, which is why the assistance of legal professionals with years of experience and a proud track record in fertility issues is crucial.

Speak with the understanding, compassionate team at Fertility Lawyers Melbourne so that your journey to parenthood can be as smooth as possible.

We have a team of fertility lawyers who can assist you in Brisbane & Sydney also in Australia.