New surrogacy laws will clarify biological parents’ rights

by Peter Magee on November 1, 2010

Peter Magee
The New South Wales government is due to consider proposed laws in relation to surrogacy – that is a woman carrying and giving birth to a baby for another person or a couple.  The proposed laws will maintain that commercial surrogacy, that is a surrogacy arrangement for money, is illegal. (SMH 28/09/10)

Rather, the laws will deal with the rights of the adults involved as “parents”.  At present, in New South Wales, the intended “parents” of the child carried by the surrogate mother are not recognised as the child’s legal parents (unless, for example, the father was, in fact, the child’s biological father).  If passed, the new laws would allow the intended parents to apply to be recognised as the surrogate child’s legal parents six weeks after the child is born.

If passed, these new laws would have similar effect to a relatively new (November 2008) amendment to the Family Law Act 1975.  That amendment relates to a child born as a result of artificial insemination.  It provides, in part, that if both parties to a couple relationship (whether heterosexual or same sex) consent to an artificial insemination procedure, from which a child is born, both parties to that couple relationship are deemed to be “parents” of the child.  If a third person provided genetic material used in the artificial insemination process, that person is not deemed to be a parent.

While the artificial insemination amendments to the Family Law Act and the proposed New South Wales laws in relation to surrogacy are intended to have general application to all couples, it is likely that they will be of particular interest to the gay and lesbian communities.  In recent years, there have been an increasing number of cases before the Courts about the “parental” or other rights of biological and non-biological “parents” of children born into and/or raised in gay or lesbian families.  Before the November 2008 amendments to the Family Law Act, those cases resulted in some seemingly strange outcomes – for example, treating as a parent and giving parental rights to only the member of a lesbian relationship who actually gave birth to an artificially conceived child.  Upon separation, the biological mother’s former partner had to fight an uphill battle to be able to spend time with the child just because the law, previously, did not recognise her as one of the child’s parents.

The new surrogacy laws are likely to be the subject of a conscience vote in New South Wales parliament.  If passed, the laws will assist in further clarifying who has parental rights in relation to a child conceived in, let’s say, a non-traditional manner.  Of course, just because both members of the couple who intend to become the child’s “parents” can apply for legal status as parents does not necessarily mean that the surrogate mother would not be entitled to apply to the Family Court to spend time with the child on the basis that she is a person concerned with the welfare of that child.

The new laws will bring NSW into line with the ACT where surrogacy laws are already on the books.

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