International and domestic research has shown that Australians are overwhelmingly choosing to engage in overseas rather than domestic surrogacy arrangements, even though commercial surrogacy is illegal in Australia. Do you know the law when asked by a client to advise on the issue of surrogacy or manage a surrogacy case?
There have been some changes, commencing in January 2016. The Family Law Rules 2004 have been amended by the Family Law Amendment (Arbitration and Other Measures) Rules 2015 (“Family Law Amendment”), with Schedule 3 providing information for practitioners on conducting surrogacy matters. It has replicated the recommendations of Ryan J in Ellison & Karnchanit  FamCA 602.
Schedule 3 of the Family Law Amendment ensures that the court has sufficient evidence to determine surrogacy proceedings, where ‘parents’ usually seek parenting orders. There has been much dissent, with variances in surrogacy decisions.
Another issue has been that due to the parties being involved in a commercial surrogacy arrangement, more often than not they did not wish to provide evidence that would determine that fact, due to the illegality of commercial surrogacy and its possible subsequent penalties.
Since the Family Law Amendment has come into operation, parties now have to provide evidence by way of Affidavit:
- Evidence of the applicants personal circumstances pursuant to Rule 4.32 Family Law Amendment
- Evidence of the surrogacy mother and her personal circumstances (including the surrogacy agreement – in whatever form) as set out in Rule 4.33 Family Law Amendment including such information as:
- evidence of informed consent
- circumstances of the birth mother
- did she receive counselling before entering the surrogacy arrangement?
- did she receive legal advice before entering the surrogacy arrangement?
- Evidence of the identity of the child as specified in Rule 4.35 Family Law Amendment to include amongst other information:
- a certified copy of the birth certificate
- a report, prepared in relation to Reg 21M of the Family Law Regulations 1984
- Evidence about relevant law in the child’s birth country as specified in Rule 4.36 Family Law Amendment.
I believe surrogacy cases will increase over time, with the large amount of Australians engaging in commercial surrogacy, albeit illegal. It is not a straightforward area of family law, however, one that most practitioners will be faced with.
If you are looking for an IVF or Surrogacy advisor, advocate or mediator, call me on (02) 9336 5399 or email me at firstname.lastname@example.org