Following Priyanka Chopra and Nick Jonas' announcement for their surrogate baby, discussion surrounding surrogacy has been sparked.
What is surrogacy?
Surrogacy is the process where a woman agrees to carry a baby for another person who, by legal agreement, will become the baby’s parents after birth. There are two forms of surrogacy arrangements that are relevant to Australian law:
- Altruistic surrogacy arrangements are arrangements where the surrogate mother does not receive any financial reward or profit from the. However, the mother will be reimbursed for any expenses incurred due to the surrogacy (for example medical, legal, and general costs).
- Commercial surrogacy arrangements are arrangements where the surrogate mother receives financial reward that covers more than the associated expenses and makes a profit from the surrogacy.
Surrogacy in Australia
In Australia, altruistic surrogacy is currently legal across all states and territories. However, commercial surrogacy is banned in NSW, QLD, TAS, and the ACT. There are no uniform laws that cover surrogacy, but instead, each state has its own regulation. Therefore, it is critical to check your state’s surrogacy regulations if you require further information.
Generally, the intended parents of a surrogacy are eligible to enter a surrogacy arrangement if they are unable to conceive or carry a baby themselves. Age and other requirements are specific to each state.
Furthermore, a surrogacy arrangement is not enforceable. This means that if the surrogate refuses to hand over the baby or the intended parents do not accept the baby, neither party can be forced to do so under the agreement.
When the baby is born, the surrogate mother and her partner are recognised as the birth parents of the baby on the Birth Certificate. In order to transfer parentage, the intended parents must apply for a Parentage Order to the Court in the state they live in to confirm they satisfy the relevant requirements. The specifics in the process to transfer parentage from the surrogate to the intended parents differs in each state, and thus, you must check your state’s regulations and requirements for more information.
If you or someone you know wish to discuss this matter further, then please contact our experienced solicitors at 02 8999 9809 for assistance.