Qld Surrogacy laws start Tuesday

Qld Surrogacy laws start Tuesday

Queensland’s Surrogacy Act 2010 starts Tuesday. The latest of the states to legalise altruistic surrogacy, the Queensland scheme has a number of unique features:

  • the starting point is that altruistic surrogacy from Tuesday will be legalised. Until Tuesday, to have engaged in altruistic surrogacy in Queensland has been an offence. Whilst there has been some doubt about the Tasmanian laws, Queensland seemed alone in criminalising all forms of surrogacy.
  • the odd position of State boundaries remains. Only Queenslanders will be able to access the Queensland scheme. This is because the ability to obtain orders for intended parents can only be accessed by Queenslanders. This in turn will probably limit the use by IVF clinics of to whom they offer their services. Conversely, there is no limit in NSW, but there is no ability in NSW to have intended parent orders, as adoption is the only option (and adoption is not available to all).
  • Queensland continues to ban commercial surrogacy. It is an offence to engage in commercial surrogacy in Queensland. This criminalisation not only affects the doctors and nurses, but the intended surrogate and the intended parents, too.
  • Queensland couples who have gone to an overseas commercial surrogacy clinic and returned with a baby will (with some  exceptions) still need to obtain a Re Mark order from the Family Court recognising that both parents can make parental decisions. These are not hard to get, if done properly. There are some tricks of the trade to ensure that they are obtained in as straightforward and cheap manner as possible. Adoption for these couples is unlikely to be possible under Queensland’s scheme.
  • Queensland has adopted the ACT scheme for intended parent orders – which involves a heavy level of counselling and legal advice. This is a good thing. To have a child through surrogacy takes a huge emotional (and financial) commitment. It is not a decision for the faint hearted. As to legal advice, a word of warning. One might think that family lawyers know something about surrogacy. From talking to my colleagues, most family lawyers wouldn’t know about surrogacy matters if they fell over them. This is no criticism of fellow family lawyers, it’s just that their focus is on family law disputes. Surrogacy matters are quite different to the usual family law matters. First of all, they are not under the (Commonwealth) Family Law Act, which deals with the breakup of relationships. The legislative scheme is quite different. Secondly, they involve happy events – a child is to be born, and not the  adversarial war and peace litigation too often seen in family law fights about children. In short, it’s a different mindset, with different regulations, and most family lawyers have no expertise to handle these cases. By contrast, I have had the privilege in acting in a number of adoption cases over the years, and have advised clients in Queensland, interstate and overseas about surrogacy, including surrogacy laws in Queensland, WA, NSW, ACT, NT and Victoria.
  • Queensland, along with the ACT, criminalises its residents accessing overseas commercial surrogacy clinics. Queenslanders should therefore never engage in overseas commercial surrogacy. It is a reality that Queenslanders continue to engage in commercial surrogacy overseas, and as a result risk being charged, fined and possibly risking their job or profession. Every other state does not criminalise accessing overseas clinics. It therefore can matter whether you live north or south of the Tweed.
  • Queensland’s Surrogacy Act (unlike say WA) does not discriminate about who can access altruistic surrogacy: sexual orientation is irrelevant, marital status is irrelevant. Therefore: married, straight, single, gay, lesbian, bi, trans, intersex, de facto- all are eligible.
  • Queensland’s Surrogacy Act amended the Birth Deaths and Marriages Registration Act to enable both lesbian parents to be registered on the birth certificate. That will be my next article.
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Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board