Surrogacy laws passed through NSW Parliament

by Peter Magee on November 22, 2010

Laws giving parents of children born through surrogacy legal recognition have been passed by NSW parliament.  Under these laws, couples will be able to apply to the court for orders which recognise their parental responsibility for children born though surrogacy.  Previously such rights were only able to be recognised through either adoption or a sharing of parental responsibility.

The new laws will make it easier to carry out routine parental responsibilities such as making decisions about health care, enrolling children in school or applying for a passport. They also ensure equality in relation to inheritances or compensation which may be payable to children as a result of the death or injury of a parent.

The laws contain appropriate safeguards to prevent commercial surrogacy, or babies being for sale.  The court must be satisfied that the arrangement was entered into prior to conception, the arrangement was not one for payment of the surrogate other than the necessary medical expenses and that all parties consent to the court orders.

The blessing of the gift of a child to appropriate parents is the greatest gift that anyone could ever receive or give.  Provided there is appropriate gate-keeping to ensure that children not become a commodity, this would appear to be a piece of legislation that provides a win-win for all parties involved.

If you and your partner are considering the option of surrogacy, you need to consult with a lawyer before conception occurs to ensure that orders are put in place to protect the rights of all those involved.

{ 2 comments… read them below or add one }

Anonymous May 9, 2011 at 3:30 pm

Hi,

I am an Australian (NSW) and British Citizen, my husband is a British Citizen. We current ly work and live in India and our surrogate child is due Dec 2011. My husband will be biologically related , i will not be as we used an anonymous egg donor. Will we ever be able to move back to NSW with the new laws that have been passed effective 1st Mar 2011.

Look forward to your advice.

Peter Magee May 9, 2011 at 4:10 pm

Thank you for your comment on our blog.

Congratulations on the impending birth of your child.

There are two separate and distinct issues to consider in relation to a potential offence under the new legislation.

Firstly, while the new legislation does create a new category of offense – entering into a commercial surrogacy arrangement, it is one that the authorities will have virtually no ability to prosecute unless you make admissions as to your breach of the law. It would be almost impossible for them to establish that your surrogacy arrangement was commercial and not altruistic (for as a gift), nor do I believe there will be any appetite from government to provide funds to investigate or prosecute any such offense.

They are not likely to be able to find your surrogate, let alone get a witness statement and fly her over here to give evidence and prove payment from you. That is without considering the political hot potato the issue would become in the media. I am sure you would have media support as what you are doing is not criminal in nature – you just want to be parents.

Secondly, if the commercial arrangement is entered into before 1 March 2011 the new legislation does not create any offense. The offense is only committed if the agreement is entered into after that date. It was wise for you not to have named the date you entered into your agreement in your email.

This second issue creates a further evidentiary problem for the police. How do they prove your agreement was after 1 March 2011? Again, without you making admissions they would struggle to prove their case.

Your concern is reasonable given the enactment of the new legislation and you ought to be careful, however for the reasons I have outlined above I do not believe the risk of prosecution is very significant. In other words I think you are likely to be safe returning to NSW in the future without being prosecuted.

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