2010, the NSW Parliament passed the Surrogacy
Act 2010 (NSW) (“the Act”). The Act commenced in 2011.
Altruistic versus commercial surrogacy
The Act distinguishes between altruistic and
commercial surrogacy. Commercial
surrogacy arrangements are those which involve “a fee, reward or other material benefit or advantage” being given
to another person in connection with the surrogacy.
However, certain reasonable medical, travel, legal
and other expenses (such as certain lost wages) may be reimbursed to the birth
mother. These are strictly specified by
the legislation and must be supported by receipts or other documentation.
surrogacy legal in NSW?
Altruistic surrogacy has always been, and will
continue to be, legal in NSW. Currently,
it is illegal to enter into, advertise or solicit a commercial surrogacy
arrangement in NSW.
After the new laws commence, if you live in NSW, it
will also be a criminal offence:
- to enter into (or offer to
enter into) a commercial surrogacy arrangement anywhere in the world
- to publicly publish any ad,
statement, notice or other material anywhere
in the world which is an intended
to bring about a surrogacy arrangement (for example, advertising for a
birth mother). However, free
advertisements or notices published in relation to altruistic surrogacy
will remain legal.
The maximum penalty for these offences is 2 years’
imprisonment and/or a fine of $100,000 for individuals.
When a child is conceived through assisted means
(such as IVF, donor insemination or home insemination), the birth mother and
her partner (if any) are automatically recognised as the legal parents. The new laws do not change this presumption
nor do they make surrogacy agreements legally binding (with the exception of
certain financial provisions in the agreements).
Instead, the new laws give the NSW Supreme Court
the power to make orders in certain circumstances which transfer the legal
rights and responsibilities of the birth mother and her partner (if any) to the
intended parent(s) where all the parties freely consent.
Parentage orders work similarly to an adoption: the
intended parent(s) named in the order are recognised for all legal purposes as
the legal parent(s) of the child and are able to have a birth certificate
reflecting that status.
Applying for a parentage order
Intended parent(s) who want to apply for parentage
orders must satisfy many requirements. Some
of the requirements are relaxed for people who are applying in relation to a
child born before the law, but the mandatory requirements must be satisfied by
everyone. In all cases, the best
interests of the child will be the paramount consideration.
Mandatory requirements for a parentage order
· the surrogacy arrangement must be altruistic and
agreed before conception (although the arrangement can be varied);
· the birth mother and her partner (if any) must
freely consent to the parentage orders, unless they cannot be located, die or
lose capacity to consent; and
· the intended parent(s) must be:
o either married, a de facto couple (including same
sex couples) or a single person,
o at least 18 years before making the arrangement and
of demonstrated maturity (if between 18 and 25 years).
There are other requirements which must be satisfied
(but these can be waived by a court in exceptional circumstances) including: the surrogacy
agreement must be in writing; the child’s birth
must be registered and certain aspects of the arrangement must be registered on
the donor registry; the child must be
living with the intended parent(s) in NSW; all parties must have
had the counselling and legal advice specified by the law; the birth mother must
be at least 25 years when the arrangement is entered into (but in no case can
she be less than 18 years); and there must be a
social or medical need for the surrogacy (male same-sex couples automatically
satisfy this condition).
Generally, an application must be made between 30
days and 6 months after the child’s birth.
However, in no circumstances can an order be made if the child is over
18 years. The application must be
accompanied by an independent counsellor’s report.
Where can I get more information?
The Inner City Legal Centre has a state-wide,
specialist lesbian and gay legal advice service. Phone: (02) 9332 1966.
The GLRL’s website (www.glrl.org.au) for
up-to-date information as laws change as well as the GLRL fact sheet, Adoption
and parenting orders.