NSW: regulating altruistic surrogacy
NSW Parliament passed the Surrogacy Act 2010 last week, which for the first time regulates altruistic surrogacy. Altruistic surrogacy is currently legal in NSW, but is unregulated. Unless an adoption order is obtained, it is not possible to change parentage.
It will be possible to obtain a parentage order in NSW once the new laws take effect, likely in December or January. This means that the custody and guardianship of the child (and the names of the parents on the birth certificate) will be able to be changed from the surrogate (and her partner) to the intended parent or parents.
The Surrogacy Act is yet to obtain Royal assent, and is due to commence on a date to be proclaimed. Given the NSW election is to be held in March and the caretaker convention stopping Government business before that, it is likely that the laws will take effect very soon.
Some key features of the Act are:
- It takes a similar approach to Qld and the ACT. Like rail gauges, unfortunately, the approaches are not identical. Anyone contemplating cross-border surrogacies must not make the mistake that the laws are the same. They are not. They need to get advice from those familiar with the different regimes in each state. I have advised clients about the laws about surrogacy in every state and territory.
- The Act does not discriminate. Single, married, straight, gay or lesbian- all can be intended parents.
- There is the light hand of Government. Unlike Victoria and WA, there is no government regulator overseeing all. Instead intending parents and surrogates are left to get on with the job of going ahead with surrogacies, provided that the framework in the Act is complied with. Non-compliance means that a clinic won’t treat and that a parentage order won’t be made.
- Commercial surrogacy is banned. Payments can be made to the surrogate for things such as medical expenses, but these have to be carefully dealt with, so that the surrogacy is not turned from altruistic (and approved) to commercial (non-approved and criminal).
- The surrogate must be 25 years or above (unless it is an arrangement entered into before the Act commences).
- The intending parents must be 18 or above, although if under 25 there needs to be evidence from a counsellor that they are mature.
- For intending parents who are men- a medical or social need needs to be established to obtain a parentage order.
- For intending parents who are women- while a social need might be established, a medical need must be established. For a lesbian couple, this means that a medical need has to be shown for both intending parents.
- For all intents and purposes a complying surrogacy arrangement is needed. While a complying surrogacy arrangement is not required, without it treatment is unlikely to be provided, and a parentage order cannot be obtained.
- Everyone must have obtained counselling and legal advice before signing up the surrogacy arrangement.
- The surrogate, her partner, and the intended parent/s must agree to the orders being made.
- The surrogacy arrangement must be signed before the child is conceived. Like Queensland there is no definition of conception- which means that until there is a ruling, most likely to be in Queensland first, there remains some doubt as to whether embryos created before the arrangement was signed constitute conception. If so, the parentage order cannot be made.
- The parentage order is made in the Supreme Court.
- The intended parents must live in NSW. The surrogate can live anywhere.
- Surrogates and intended parents can only be found by word of mouth. Advertising, including notices on the web, is an offence.
The legal process has two steps:
Before the pregnancy, the surrogacy arrangement is signed up.
After the child is born, and handed over, everyone goes to court so that a parentage order can be made to change legal parentage of the child.
Anyone contemplating surrogacy should get knowledgable legal advice first!