Every relationship has its milestones; that quirky first date, a whirlwind engagement, the wedding of your dreams. For many, the next step is to settle down and start a family, but for some this is not possible. When a couple is faced with the realty of being unable to have children, many place their hopes in surrogacy for a chance to be able to hold their child in their arms. However, this is not an easy feat and is an area fraught with legal problems. Surrogacy is heavily regulated in Australia, with each state having their own laws to govern the surrogacy relationship.
In New South Wales, this is governed by the Surrogacy Act 2010 (NSW) and you can enter into a surrogacy relationship regardless of your gender or relationship status, as long as you are unable to conceive or give birth or have a genetic defect that you risk passing on. The Act requires surrogacy relationship must be altruistic, which means that the birth mother must not gain financially from the arrangement, though she is entitled to be compensated for her expenses. The next step requires a pre-conception surrogacy arrangement, which allows the intended parents to apply for a parentage order, so that the child can legally be recognised as theirs. All parties have to undergo counselling, as well as seek independent legal advice before and after the birth. Failure to comply with surrogacy conditions may result in two years imprisonment.
The problem with surrogacy in Australia, is that there are very few women who are likely to enter into a surrogacy relationship due to the altruism requirement, which often leaves them feeling like they aren’t being properly compensated. This results in many Australian couples to seek a surrogate from overseas, which results in a baby born in a legal limbo. International surrogacy is illegal in NSW, and there are often many problems with establishing the parentage and citizenship of the child internationally. For example, in Thailand, the birth mother is considered the legal mother of the child and if she is married, her husband is the legal father. The child attains Thai citizenship, as per the legal status of the mother, and placing the biological father’s name on the birth certificate does not automatically guarantee him paternity rights or the right to custody. The legal status of the child varies from country to country, and there is no uniformity in surrogacy law, so the child may be left without citizenship or legal parents in countries where surrogates are not held to be the legal parents. Essentially, surrogacy is an area of law that requires a lot of reform and international cooperation, and navigating surrogacy law as it currently stands is a complex and difficult process.
If you or someone you know is considering entering into a surrogacy relationship or you wish to find out more about the legal aspects of surrogacy please do not hesitate to contact Freedman and Gopalan on 02 8917 8700.