Interestingly, Australia is the largest user nation globally of cross-border commercial surrogacy even though there are sanctions for residents of NSW, Qld and ACT who engage in commercial surrogacy. The long standing debate about whether commercial surrogacy should be legalised in Australia continues, to date, without resolution. Presently, the legislative pathway is difficult (and often produces unintended results) and can be ambiguous in its application. In addition, judicial decisions are diverse when commercial surrogacy cases come before Federal Courts. How can you, as a family lawyer, navigate surrogacy matters for the best possible outcome?
5 min read…
What is Commercial Surrogacy?
Commercial surrogacy is where payment is made to the surrogate mother that is beyond the recovery of medical costs—where the surrogate mother makes a profit from the arrangement. Commercial surrogacy is illegal in most Australian jurisdictions.
Is the Birth Mother Compelled To Give Up the Child at Birth?
In Australia (and in some overseas jurisdictions) the birth mother by law is the legal parent, with parental responsibility, and is not compelled to relinquish the child. If the commissioning father provided sperm for the surrogacy arrangement and his name is on an overseas birth certificate, this does not guarantee that he has an automatic right to custody of the child.
Citizenship is determined by legal parentage, not on the basis of biological parentage. In order to obtain Australian citizenship for a child born to a surrogate overseas, the Australian “parents” need to lodge an application for Australian citizenship by descent, which must meet particular guidelines. Family lawyers need to refer clients to an immigration agent or lawyer in surrogacy matters.
Difficulties that Arise
- A child born in an overseas surrogacy arrangement, DNA material is improperly taken from the child (to prove parentage usually by the commissioning father) and it was without the consent of the birth mother, who had parental responsibility for the child. Can that evidence be admitted into an Australian Court for the purposes of proving biological parentage to then seek a declaration of legal parentage for the commissioning father pursuant to Division 12 Subdivisions D & E, (“presumptions of parentage’) Family Law Act 1975 (Cth) (“FLA”) ?
- Do the presumptions of parentage apply in international surrogacy cases, even though there appears to be a clear intention in ss 69R, 69S and 69T FLA that such presumptions do apply. However, there is no prescribed overseas jurisdiction listed, so do they apply?
- Section 60H FLA applies in surrogacy matters where fertility procedures were undertaken for conception to occur (which is most often the case). This section assists the court to determine legal parentage and is open to judicial interpretation and often produces unintended results. The question is do these sections “cover the field” in relation to who can be a legal parent in surrogacy arrangements?
- Diversity in results and confusion of Courts when faced with the question – who is the legal parent is an ongoing issue! For example, the same heterosexual couple who used 2 different Thai women in surrogacy arrangements where three children were born. The Australian couple bought 2 separate proceedings before the Court, with very different outcomes in answer to the question raised [Dennis & Pradchaphet  FamCA 123 &Dudley & Chedi  FamCA 502]
More cases have been decided and they continue to muddy the waters in relation to “who is a legal parent” in surrogacy cases?
- Can the biological parent/s apply for parental responsibility and parenting orders for the child under the FLA? If so, whats the power of the Court to make such orders? If “legal parentage” is not determined in favour of your client. what are the alternatives?
5 Valuable Tips
As there is no uncomplicated, easy pathway to run and manage commercial surrogacy, cases, in many ways due to the complexity of the law as it is currently stands, a practitioner would be better equipped if they had an understanding of at least the following:
- The provisions in the Family Law Act and how they apply i.e. in particular s 60H, s60HB and the parenting presumptions in Division 12 Subdivisions D & E.
- The Family Law Regulations 1984 relating to DNA evidence, reports, labs and admissibility
- The Evidence Act 1995 particularly in respect to admission of evidence that has been improperly obtained
- The applicable NSW State legislation i.e. Status of Children Act 1996 & Surrogacy Act 2010 and their application.
- Know the laws and the difference between the laws surrounding altruistic surrogacy (Surrogacy Act 2010) and commercial surrogacy (Surrogacy Act and its interaction with the FLA).
Surrogacy law is complex and requires lawyers to navigate differing State and Territory legislation, domestic and international surrogacy schemes, migration law, family law, assisted reproduction law, birth registration and State and Federal Court systems.
It is a difficult area of family law but it can be navigated more easily with increased knowledge of the applicable law and how courts are applying the law to come to their decisions.
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