The Surrogacy Act 2010 (Qld) was bought into effective operation on 1st June 2010. This purpose of this Act is to regulate surrogacy agreements in Queensland and permit surrogacy arrangements (as long as they are not for commercial purposes).
What is a Surrogacy Arrangement?
A surrogacy arrangement is an agreement between a woman (the ‘birth mother’) and other person or persons (normally the ‘intended parent or parents’), whereby the woman agrees to become pregnant with the understanding that the child born is to be considered the child of the other person or persons.
In effect, this means the birth mother will relinquish custody and guardianship of the child to the intended parent or parents’ and they in-turn agree to become permanently responsible for the custody and guardianship of the child from that point forward.
A Parentage Order is an Order made by the Children’s Court for the transfer of the parentage of a child born pursuant to a surrogacy arrangement. A Parentage Order effectively transfers legal parentage of a child from the birth mother to the intended parents.
Medical or Social Need for a Surrogacy Arrangement and Eligible Women
Women applicants who are intended parents must be unable to conceive or carry a child themselves due to medical reasons. This means that women applicants who are able to conceive or carry a child are prevented from obtaining a Parentage Order.
Commercial Surrogacy Arrangements
A commercial surrogacy arrangement is deemede to occur if the birth mother receives any type of remuneration or payment (or other material benefit) as a result of the surrogacy relationship.
Commercial surrogacy arrangements of this kind are currently not legal in Queensland, however, if the intended parents pay for the birth mother’s reasonable medical, legal and counselling expenses arising from the surrogacy arrangement, these amounts do not render the surrogacy arrangement a commercial one.
The surrogacy agreement (a contract) must be a valid written contract that sets out the main features of the surrogacy arrangement that is signed by the birth mother and the intended parents and must be made before the child is conceived.
Surrogacy Arrangements Remain Unenforceable
The main problem with surrogacy arrangements in Queensland is that they remain unenforceable.
This means you cannot apply to the Children’s Court to enforce the surrogacy arrangement if things go wrong.
So, despite having a written surrogacy agreement, if the birth mother refuses to give the child to the intended parents, or if the intended parents refuse to take the child, neither party can rely on the written agreement to enforce the surrogacy arrangement in the Children’s Court
In this circumstance, the parties will have to make an application under the Family Law Act 1975 (Cth) for Orders pertaining to whom the child should live with and who the child should spend time with. The Court will then engage in an assessment of the child’s best interests.
Application for a Parentage Order
An application for a Parentage Order for a child can be made 28 days after the child is born and before the child is 6 months old. Applications after this time may be allowed with leave from the Children’s Court.
The intended parents of a child may apply to the Children’s Court for a Parentage Order, provided certain requirements are met. These requirements include:
- That the Order is in the best interests of the child
- That the child must have lived with the applicants for at least 28 days prior to the application
- Living with the applicants at the time the application is made and at the time of the hearing
- That there is evidence of a medical or social need for the surrogacy arrangement
- The surrogacy arrangement was made after the birth mother and intended parents obtained independent legal advice and counselling
- That the surrogacy arrangement was made before the child was conceived and that the arrangement is in writing and signed by the birth parents and the intended parents
- That the birth mother and the intended parents were at least 25 years of age when the surrogacy arrangement was made
- That the birth mother ordinarily resides in Queensland
- That the birth mother and the applicants consent to the making of the Parentage Order
A Discharge Order
After a Parentage Order has been made, an interested person may apply to the Court for a Discharge Order which effectively discharges a Parentage Order regarding a child. The grounds on which an interested person can apply for a Discharge Order are as follows:
- That it was obtained by fraud, duress or other improper means
- That the consent required was not given or was given for payment, reward or other material benefit or advantage
- There is an exceptional reason why the Parenting Order should be discharged
If a Discharge Order is granted by the Children’s Court the rights, duties and relationships of the child and all other persons are the same as if the Parentage Order being discharged had not been made in the first place.
Requirement to Obtain Independent Legal Advice and Counselling
The Act requires the birth mother, the birth mother’s spouse (if any) and the intended parents to obtain independent legal advice and counselling before entering into the surrogacy arrangement.
All parties involved must obtain independent legal advice prior to entering into the surrogacy agreement so that their rights and obligations under the surrogacy arrangement, as well as the legal implications of entering into a surrogacy arrangement, can be fully explained.
Independent counselling must also be obtained prior to entering into the surrogacy agreement, as it is important that all parties involved are made aware of the social and psychological implications of entering into surrogacy arrangements.