Surrogacy
New surrogacy laws for Queensland
The Surrogacy Act 2010 was passed by Parliament on 11 February 2010 with the provisions of the Act to commence on 1 June 2010. This means that from 1 June 2010 it will be legal for altruistic surrogacy arrangements (that is, non-commercial arrangements) to be made in Queensland.
What is a surrogacy arrangement?
A surrogacy arrangement is an arrangement between a woman (the birth mother) and another person or couple (the intended parents) where the birth mother agrees to become pregnant with a child for the intended parents. The child born as a result of the pregnancy will be permanently relinquished by the birth mother into the care and custody of the intended parents.
A surrogacy arrangement can only be made before the birth mother becomes pregnant.
These are the minimum requirements for a surrogacy arrangement.
There are additional requirements which must be satisfied to obtain a court order that transfers the legal parentage of the child from the birth mother to the intended parents (known as a parentage order). For example, the parties to a surrogacy arrangement must obtain counselling and independent legal advice before entering into the arrangement.
Steps required for entering into a surrogacy arrangement and obtaining a parentage order
The Surrogacy Act imposes many requirements on parties who wish to obtain a parentage order following a surrogacy arrangement. The court may not make a parentage order unless these requirements have been satisfied.
It is important that legal advice be obtained by a person before the person enters into a surrogacy arrangement.
The table of steps required outlines the main steps that a person must take when entering into a surrogacy arrangement and applying to a court for a parentage order.
What is legal under the Surrogacy Act 2010?
- From 1 June 2010 it will no longer be unlawful for parties to enter into an altruistic surrogacy arrangement.
- It will remain unlawful for a person to enter into a commercial surrogacy arrangement. A commercial surrogacy arrangement is where there is a payment, reward or any material benefit to any of the parties for entering into the arrangement or agreeing to the making of a parentage order.
- The payment to, or reimbursement of, the birth mother’s reasonable expenses associated with the surrogacy will be permitted in a surrogacy arrangement. See more information about what expenses are allowed as the birth mother’s reasonable surrogacy costs
- Surrogacy arrangements are not enforceable. This means that the birth mother or the intended parents may change her or his minds at any time before the court makes an order to transfer the parentage of the child to the intended parents. Therefore, a birth mother may decide not to relinquish the child to the intended parents or the intended parents may decide not to permanently care for the child.
- The part of the arrangement relating to the payment of reasonable surrogacy costs of the birth mother can be enforced by a court in certain circumstances. For example, when the birth mother has fulfilled her obligations under the arrangement by relinquishing the child to the intended parents and consenting to the making of the parentage order.
- In Queensland, or if you are a Queensland resident, it is illegal to advertise for any surrogacy (altruistic or commercial): either that you are willing to be a birth mother or that you seek someone to act as a birth mother for you. Also, it is illegal to receive any fees received for arranging a surrogacy arrangement (either altruistic or commercial).
Who can enter into a surrogacy arrangement?
Any person, regardless of his or her relationship status, will be able to enter into a surrogacy arrangement. Intended parents may be a married or de facto couple (including same-sex de facto couples) or a single person.
The parties entering into a surrogacy arrangement may utilise any of the various methods for conception, such as in-vitro fertilisation, artificial insemination, self insemination or natural conception.
There is no requirement for any of the parties to have (or not have) a genetic connection to the child or with each other.
What are the birth mother’s reasonable surrogacy costs?
The birth mother’s surrogacy costs include the reasonable costs associated with her becoming or trying to become pregnant or her pregnancy and birth. The birth mother’s surrogacy costs also include any reasonable costs associated with the birth mother, or her spouse (if any), being a party to the surrogacy arrangement or court proceedings in relation to the parentage order.
Section 11 of the Surrogacy Act provides these costs include: reasonable medical costs for the birth mother; reasonable costs, including medical, for the child; certain health, disability or life insurance premiums; certain counselling and counsellor’s report costs; legal costs; actual lost earnings of the birth mother in certain circumstances; and other reasonable costs associated with the surrogacy arrangement or the making of the order transferring parentage
What surrogacy costs are paid to the birth mother is a matter for the parties to agree upon when making the surrogacy arrangement. The surrogacy arrangement should set out the agreement between the parties about which, if any, of the allowable expenses and costs are to be paid or reimbursed to the birth mother.
What are the rights of the birth mother?
The birth mother has the right to manage her own pregnancy as any other pregnant woman, despite what may be agreed to in the surrogacy arrangement.
After the baby is born, the birth mother is presumed to be the mother of the baby and her partner (if any) is presumed to be the father, or where the birth mother has a female partner, and the baby was conceived via an assisted reproduction technology, the female partner is presumed to be the parent of the child. The making of a parentage order will override this parenting presumption.
The existing requirement for the birth mother (and the other birth parent, if any) under the Births Deaths and Marriages Registration Act 2003 to register the birth of the child applies and the child’s birth is to be registered accordingly, showing the birth mother (and the other birth parent, if any) as the child’s parent(s).
Why do you need to transfer the parentage of the child?
Surrogacy arrangements can occur without a transfer of parentage. However, the transfer of the parentage is desirable because it creates legal certainty for the child in relation to a number of future life events, such as the name of the child, the child’s birth certificate and the child’s entitlement under wills and deceased estates. A transfer of parentage will also give the intended parents legal status to make decisions on behalf of the child and to make representations to government agencies on behalf of the child.
If the court decides to make the parentage order, then the birth mother and her partner no longer have a legal parental relationship with the child and the intended parent/s become the parents of the child to the exclusion of everyone else. The child’s birth certificate can be amended to reflect the intended parent/s as the parents of the child.
Who is eligible to apply for a transfer of parentage?
There are no restrictions on who can apply to the court based on the relationship status of the intended parents; how the birth mother conceived the child; or the genetic relationships (if any) between the child, the birth mother or intended parents.
However, the Surrogacy Act does include safeguards to protect the rights, wellbeing and best interests of a child born as a result of a surrogacy arrangement and to ensure that the parties to a surrogacy arrangement understand the implications of the surrogacy arrangement. This is achieved by requiring the court to be satisfied of certain matters before the court may make a parentage order.
What is the application process for a parentage order?
The Childrens Court, constituted by a District Court judge, will hear applications for a parentage order.
The intending parents will be responsible to make the application to the court.
The application for a parentage order is to comply with the Uniform Civil Procedure Rules 1999 and the Uniform Civil Procedure Amendment Rule (No. 2) 2010 as if the proceedings were proceedings in the District Court. See more information about making applications to the Childrens Court.
Special privacy provisions apply to who can be present at the court proceedings, access to the court record and the publication of information about the court proceedings. Part 6 of Chapter 3 of the Surrogacy Act sets out in detail these special provisions.
What information is in a parentage order?
Section 34 of the Surrogacy Act sets out the minimum information to be included in a parentage order, which are:
(a) The date of the order.
(b) The name of the child.
(c) The date of birth of the child.
(d) The place of birth of the child.
(e) Each of the intended parents’ full name, address and occupation.
(f) Each of the birth parents’ full name, address and occupation.
(g) The terms of any other order that is made.
Safeguards for the transfer of parentage of the child
To ensure the well-being and best interests of the child are protected and that parties to a surrogacy arrangement are fully aware of the implications of entering into a surrogacy arrangement, the court must be satisfied of certain matters before an order transferring parentage of a child can be made. Section 22 of the Surrogacy Act sets out in detail what these matters are. They include:
- The parentage order is for the wellbeing and in the best interests of the child.
- The surrogacy arrangement was made before a child was conceived.
- The surrogacy arrangement is not a commercial surrogacy arrangement.
- The parties obtained independent legal advice prior to entering into the surrogacy arrangement. See more information about obtaining legal advice.
- The parties obtained counselling from an appropriately qualified counsellor about the surrogacy prior to entering into the arrangement. See more information about obtaining counselling.
- The surrogacy arrangement was made with the consent of all the parties.
- The surrogacy arrangement is in writing and signed by the birth mother, her partner (if any) and the intended parents.
- The application was made 28 days after, and within six months of, the child’s birth.
- The child: has lived with the intended parents for at least 28 consecutive days; lived with the intended parents at the time of lodging the application; and is still living with the intended parents at the court hearing.
- The intended parents are residents in Queensland.
- The birth mother, the birth mother’s partner (if any) and the intended parents were at least 25 years when the surrogacy arrangement was made.
- The birth mother, the other birth parent (if any) and the intended parents all consent to the making of the parentage order.
- A surrogacy guidance report that has been prepared by an independent and appropriately qualified counsellor has been provided to the court. This report cannot be prepared by the same counsellor who gave counselling to any of the parties prior to them entering into the surrogacy arrangement. For information about who is an independent and appropriately qualified counsellor.
- There is evidence of a medical or social need for the intended parents to want to make the surrogacy arrangement. See more information about what is a medical or social need for a surrogacy arrangement.
Who pays the legal and other costs of the surrogacy?
This is a matter for the parties to agree to during the making of the surrogacy arrangement. However, the birth mother’s reasonable surrogacy costs that are permitted to be paid by the intended parents under a surrogacy arrangement may include her legal, counselling and other associated costs. Section 11 of the Surrogacy Act sets out what costs and expenses of the birth mother are permitted to be paid by the intended parents. See more information about what expenses are allowed as the birth mother’s reasonable surrogacy costs.
When should legal advice be obtained?
The Surrogacy Act requires the birth mother, the birth mother’s spouse and the intended parents to obtain legal advice before entering into a surrogacy arrangement. It is important for all parties to obtain legal advice so that their rights and obligations under the surrogacy arrangement, as well as the implications of entering into a surrogacy arrangement, can be fully explained.
If there are two intended parents they can both receive the legal advice from the one lawyer at the same time. Similarly if the birth mother has a spouse then the birth mother and her spouse can both receive the legal advice from the one lawyer at the same time. However the lawyer who gives the legal advice to the intended parents cannot be the same lawyer who gives the legal advice to the birth mother and her spouse (if any).
When should counselling be obtained?
The Surrogacy Act requires the birth mother, the birth mother’s spouse and the intended parents to obtain counselling before entering into a surrogacy arrangement. It is important that the parties entering into a surrogacy arrangement are aware of the social and psychological implications of the surrogacy arrangement and making of a parentage order. For example how conception of the child is achieved, and the genetic material to be used in conception of the child, will have long term implications for all parties and counselling should address these issues.
Who is an appropriately qualified or independent counsellor?
The counsellor/s that provide/s counselling to the parties prior to entering into a surrogacy arrangement must be ‘appropriately qualified’. The counsellor who prepares the surrogacy guidance report for the court must also be ‘appropriately qualified’ and in addition be ‘independent’.
Section 19 of the Surrogacy Act defines an appropriately qualified counsellor as someone who has the experience, skills or knowledge to prepare the report and who is one of the following:
a) a member of the Australian and New Zealand Infertility Counsellors Association
b) a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists
c) a psychologist who is a member of the Australian Psychological Society; or
d) a social worker who is a member of the Australian Association of Social Workers.
An appropriately qualified counsellor is independent if: the counsellor has not given counselling about the surrogacy arrangement to the birth mother, the birth mother’s spouse (if any) or an intended parent; and is not, and has not been, directly connected with the medical practitioner who carried out the procedure that resulted in the birth of the child.
What is a medical or social need for a surrogacy?
Section 22(2)(d) of the Surrogacy Act requires the court to be satisfied that the intended parents have a medical or social need before making a parentage order.
Section 14 of the Surrogacy Act defines a medical or social need for a surrogacy occurs if: the intended parents are a man and an eligible woman; or the intended parents are both men, or both eligible women; or the sole intended parent is a man or an eligible woman.
An eligible woman is a woman who is unable to become pregnant or is unable to carry a pregnancy or give birth. It also includes the situation where, if the woman did conceive a child: the child would be affected by a genetic condition or disorder or the child’s health or life would be at risk by the pregnancy or birth. An eligible woman also covers the situation where, the woman, if she did conceive a child, is unlikely to survive the pregnancy or birth or her health would be significantly affected.
This definition would exclude a heterosexual couple in the circumstances where the male partner is the carrier of the genetic condition or disorder and the female partner is fertile and able to carry a child and give birth. This is because the female partner is able to conceive a child not affected by a genetic condition or disorder with the use of donor sperm through an ART procedure.
Are surrogacy arrangements that were made prior to the legislation commencing included?
The Surrogacy Act offers a window of opportunity for an application to be made by the intended parents for a parentage order for a child that was born as a result of an altruistic surrogacy arrangement before the commencement of the Surrogacy Act. The window of opportunity lasts for two years from the commencement of the Surrogacy Act (1 June 2010) and an application to the Childrens Court judge must meet the requirements as set out in Part 2 of Chapter 5 of the Surrogacy Act.
Can the parentage order be set aside or appealed?
Part 4 of Chapter 3 of the Surrogacy Act sets out the circumstances when a Childrens Court judge may discharge a parentage order and also who may apply to the court for the discharge order. A Childrens Court judge must be satisfied that discharging the parentage order is in the best interests of the child and also that: there has been fraud, duress or other improper means; or a consent of a party was not given or was given for payment, reward or other material benefit or advantage; or there is an exceptional reason.
A party will have a right to appeal to the Court of Appeal against the refusal to make the order transferring legal parentage or to discharge (or refusal to discharge) an order to transfer legal parentage. Part 5 of Chapter 3 of the Surrogacy Act provides for how appeals are to be undertaken.
What is the process for the registration of the parentage order?
Amendments in the Surrogacy Act will allow the intending parents to lodge an application on the approved form with the Registry of Births, Deaths and Marriages (BDM), together with the parentage order and applicable fee, to ensure that the child’s birth certificate accurately reflects the transfer of parentage.
This is achieved by closing the original birth record of the child and creating a new birth entry for the child that includes the intended parents’ details. A notation is made in the registers that will link the new record with the original record.
The birth certificate of the child will include details of the intending parents, the name of the child and other particulars required to be included in the birth certificate. The birth certificate will not include any information that is included in the closed register.
There are special provisions in the Births, Deaths and Marriages Registration Act 2003 that limit who is entitled to access information from the closed register and when this information can be obtained.
The intending parents, the birth parents and the child (when the child is 18 years) will be able to access information from the original record. A child under the age of 18 years will be able to access information from the original record if the appropriate consents have been obtained from the birth parents and intended parents (except if the person has since died or can not be reasonably located).
The Surrogacy Act also provides that when an adult child (18 years or over) applies for a copy of his or her birth certificate, the child will receive an addendum that is attached to the birth certificate that advises there is additional information about his or her birth record. The adult child is able to obtain a copy of this additional information from the closed register.