Key Practice Areas
Surrogacy – The Issues Worth Knowing About
Monday, November 27, 2017
We regularly receive inquiries from individuals looking to go down the path of surrogacy.
The ability to enter a surrogacy arrangement is a complex area; however became just that little bit easier on the 1st of June 2010 when the Surrogacy Act 2010 (“the Act”) commenced. The Act means that Queenslanders can now enter into not-for-profit surrogacy arrangements.
What Is a Surrogacy Arrangement?
A surrogacy arrangement is an agreement between a birth mother and an intended parent/s where the birth mother agrees to carry a child which, once born, will be treated as a child of the intended parent/s.
The agreement is formalised between the birth mother, her partner and the intended parent/s. There are strict requirements which must be adhered to when preparing the Surrogacy Agreement, including mandatory counselling and the obtaining of legal advice by all parties.
Once the child is born, the birth mother surrenders custody and guardianship of the child and the intended parent/s become permanently and legally responsible for the child.
Am I Eligible to Become An Intended Parent?
In order to be an eligible intended parent of a surrogacy arrangement, you must have a medical or social need for it.
This includes things such as:
- you are unable to conceive a child, or
- you are unable to, on medical grounds, carry a pregnancy or to give birth, or
- you are able to conceive but:
- either you or the child is unlikely to survive the pregnancy or birth, or
- it is likely that your health will be significantly be affected by the pregnancy or the birth, or
- you are able to conceive a child affected by genetic condition or disorder, the cause of which is attributable to the woman, or
- be likely to conceive a child whose health is likely to be significantly affected by pregnancy or birth.
Should I Pay the Birth Mother?
Intended parents are allowed to pay the birth mother’s surrogacy costs. This includes the costs associated with preparing the surrogacy agreement, becoming pregnant, carrying the child to term, the costs of delivering the child, and the costs of being a party to proceedings for a parenting order.
Commercial surrogacy, where the birth mother is paid over and above the reasonable costs associated with the surrogacy arrangement, is illegal. There are penalties for entering into a commercial surrogacy arrangement which range up to three years imprisonment.
What Happens When the Child Is Born?
The child lives with the intended parent/s after the birth for at least 28 days before an application to court for a parentage order is made. That application must be made within six months of the child being born.
There are exceptions to these time-frames but they require leave of the court to be granted. For the child to become a child of the intended parents, it is necessary for the Children’s Court to make a parentage order to this effect.
Before the court will make a parentage order they must be satisfied that:
- the child has resided with the intended parents for at least 28 consecutive days, and
- the child was residing with the intended parents at the time the application was made to the court, and
- the child is residing with the intended parents at the time of the hearing, and
- the intended parents are entitled to apply for the parentage order, and
- there is evidence of a medical or social need for the surrogacy, and
- the surrogacy arrangement was made after all parties to the agreement received independent legal advice and counselling, and
- the surrogacy arrangement was made in writing with the consent of all of the parties to it, and
- the surrogacy arrangement was made before the child was conceived, and
- the surrogacy arrangement is not a commercial surrogacy arrangement, and
- all parties to the surrogacy arrangement are at least 25 years of age, and
- the intended parents are ordinarily resident in Queensland, and
- all parties consent to the surrogacy arrangement at the time of the hearing, and
- a guidance report supports the making of the order.
How Much Will It Cost?
As the intended parents it is likely that you will spend approximately $35,000 to $55,000 on both your legal fees and those of the intended mother, your respective counselling and medical expenses.
How We Can Help
Quinn & Scattini Lawyers regularly assist individuals and couples with family law matters, including in cases where a client wants to go down the path of surrogacy. We have compassion and understanding for all matters which are emotional, as is the case with surrogacy matters. With over 40 years’ experience, Q&S’s Family Law Team are experts in the family law field. The team also boasts an Accredited Family Law Specialist.
Our expert family lawyers are available at any of our local offices.