In 2010, the NSW Parliament passed the Surrogacy Act 2010 (NSW) (“the Act”).  The Act commenced in 2011.  

Altruistic versus commercial surrogacy arrangements

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.

 

Is 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.

 

Parentage orders

 

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 include:

·     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.