Surrogacy
There are two categories of surrogacy in Australia - altruistic and commercial. Commercial surrogacy remains illegal in most parts of Australia. Therefore, for a surrogacy to be legal in Australia, the surrogate mother and her partner (if any) cannot receive compensation for carrying and delivering a child. This is referred to as an altruistic surrogacy.
However, Section 44 of the Assisted Reproductive Treatment Act 2008 (Vic) provides that a surrogate mother may be reimbursed for the prescribed costs incurred by them as a direct consequence of entering into the surrogacy arrangement.
Accordingly, a surrogate mother can be reimbursed for the following expenses:
· Medical costs for herself and the child;
· Certain health, disability or life insurance premiums;
· Certain counselling and counsellor’s reports costs;
· Legal costs;
· The birth mother’s loss of earnings in certain circumstances; and
· Other reasonable costs associated with the surrogacy arrangements of the parentage order.
Immediately after the child’s birth, the surrogate mother is regarded as the child’s mother. This is outlined in Section 60H of the Family Law Act 1975 (Cth).
To replace the surrogate with the commissioning parents (the intended parent/s) as the child’s legal parents, an application to the State Court must be made. In Victoria, this is referred to as an ‘Application for a Substitute Parentage Order’ and is made through the County Court of Victoria.
Prior to the making of an Order in Victoria, the County Court must be satisfied that:
· The Order is in the best interests of the child;
· The surrogacy arrangement was commissioned with the assistance of an ART provider;
· The Patient Review Panel approved the surrogacy arrangement prior to the surrogacy;
· The child was living with the commission parents at the time the application was made;
· The surrogate parents did not receive any material advantage from the surrogacy; and
· The surrogate mother freely consented to the order.
As per Section 60HB of the Family Law Act 1975 (Cth), once an order has been made under the prescribed State or Territory stating that the commission parents are the parents of the child, then “for the purposes of [the Family Law Act], the child is the child of each of those persons.” Consequently, all six States now have prescribed laws.
Additionally, Section 69R of the Act provides that if a person’s name is entered as a parent of a child in a register of births, or parentage information kept under a law of the Commonwealth or for a state, territory or prescribed overseas jurisdiction, that person is presumed to be a parent of the child.
It is important to note that in Victoria, an application for a Substitute Parentage Order cannot be made no less than 28 days and no more than six months after the child is born. An application outside of these dates requires the leave of the Court. In practical terms, this means that the surrogate mother needs to be readily available to ensure that she can authorize any medical treatment for the child, if required. Alternatively, it may be necessary to apply to the Family Court for an urgent order for parental responsibility to be made in favour of the commissioning parents, pending the making of a Substitute Parentage Order.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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