Surrogacy and Parentage

by Bree Staines on June 30, 2016

Bree Staines

After over a year since the infamous “Baby Gammy” surrogacy case, controversy still surrounds Thailand’s surrogacy laws. A homosexual Spanish couple are fighting to have their daughter born to a Thai surrogate after the surrogate has started a legal battle to keep the child. After the baby Gammy case, Thailand no longer accepts surrogacy arrangements from Australians, and average cost for the surrogacy arrangement (including payment to the surrogate) is $140,000. The child, who is now almost aged 1 year, was born using an egg from an anonymous donor. The surrogate mother refused to sign a document that would allow the baby to obtain a United State of America Passport and did not provide a letter that you allow the baby to leave Thailand. It is now a matter for the Thailand Family Court to decide whether the Spanish couple are to have sole custody of the child, and accordingly, can return home with her.

If such a situation was applied to Australian legalisation, the following points explain what would occur:

  1. The current common law in Australia allows for the presumption to be made that when a woman gives birth to a child, she and her partner are parents of that child. Since this is not intended to be the case in surrogacy arrangements, section 39 of the Surrogacy Act 2010 (NSW) allows for a parenting Order to be made when a surrogacy arrangement has been entered into. The intended parents of the child born via surrogacy can apply to the Supreme Court of NSW to have this presumption rebutted and to stop the birth parent being a parent of the child. The parent would then have parental responsibility of the child under the Family Law Act 1975 (Cth). It is important to note that the Surrogacy Act 2010 (NSW) is consistent with the Family Law Act 1975 (Cth) in respect to “the best interests of the child is the paramount consideration when making a parentage Order” (section 22 of Surrogacy Act 2010 (NSW) and section 60CA of the Family Law Act 1975 (Cth)).
  2. A surrogate mother cannot commercially or financially benefit from the surrogacy arrangement. Altruistic surrogacy is the only type allowed in Australia (section 23 of the Surrogacy Act 2010 (NSW) and is one of the reasons it is mostly family members who act as a surrogate for an intended parent. The surrogate mother cannot have a commercial interest in the surrogacy and the only financial aspect of the surrogacy arrangement is the parents of the child paying for the surrogate’s medical expenses associated with the surrogacy. Furthermore, there are strict legal requirements that intended parents of the child and the surrogate mother must adhere to before a surrogacy can occur, and includes entering into a Surrogacy Agreement the parents and the surrogate much each receive independent legal advice on.

If you are considering being a party to a surrogacy and require advice on the surrogacy process or a surrogacy arrangement, the family law team at Armstrong Legal can meet with you to discuss your matters and advise you on the next steps and legal considerations. We have offices in Sydney, Melbourne, Brisbane and Canberra and family lawyers with the knowledge of the surrogacy laws in your state.

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