Surrogacy is the process involving a substitute mother bearing a child on behalf of another person or persons. Altruistic surrogacy arrangements are legal in Australia and can provide benefits for all concerned. Those unable to conceive are given the opportunity to parent a child and the birth mother brings that child into the world.
Surrogacy arrangements are regulated in each state with legislation setting out the law and process required to transfer parentage rights from the surrogate to the intended parents. The following principles are common to all jurisdictions:
- Commercial surrogacy is illegal – arrangements must be altruistic however the surrogate’s reasonable expenses may be paid by the intending parents.
- The surrogacy arrangement is only enforceable to the extent that prescribed costs are covered. This means that the surrogate, or the intending parents, are not compelled to relinquish or accept the child after it is born – mutual trust and a strong relationship between all involved with surrogacy is important.
- The intended parents must be eligible according to the relevant legislation.
- The birth is registered with the surrogate and partner (if relevant) listed as parents, in the state where the baby is born. The intended parents may subsequently apply for a parentage order which transfers parentage to the intended parents and a new birth certificate is issued.
- The best interests of the child will be the paramount consideration when deciding to grant a parentage order.
Surrogacy laws in Western Australia
The Surrogacy Act 2008 (WA) is the relevant legislation in Western Australia.
A surrogacy arrangement occurs when a woman (the birth mother) becomes or attempts to become pregnant, with the intention that another person/s (the arranged parent/s) will raise the child. After the child is born, the court may grant a parentage order to the arranged parents provided the necessary criteria is satisfied.
The birth mother must not be paid for the arrangement, apart from reasonable costs in relation to the surrogacy. These include expenses relating to attempts to conceive, the pregnancy and birth, medical fees not covered by insurance, fees for obtaining legal advice, psychological counselling and up to two month’s earnings during the birth period.
Eligibility for a parentage order
In Western Australia, a parentage order may only be granted to an eligible couple or eligible person. This includes:
- a married or de facto couple of opposite sex who are unable to conceive a child for medical reasons (not related to age) or, if they are able to conceive, would likely give birth to a child affected by a genetic abnormality or disease; or
- a single woman who is unable to conceive a child for medical reasons (not related to age) or, if able to conceive, would likely give birth to a child affected by a genetic abnormality or disease, or for medical reasons is unable to give birth to a child.
Presently, the Act does not allow the grant of a parentage order to same sex couples or single men, however proposed reforms are on foot which may amend these provisions in the foreseeable future.
The arranged parents must live in Western Australia and at least one must be 25 years of age or over.
Approval of surrogacy agreements
For a parentage order to be granted, surrogacy agreements must be approved in writing before the birth mother becomes pregnant, by the Western Australian Reproductive Technology Council. The following requirements apply:
- the birth mother must be at least 25 years of age and, unless exceptional circumstances exist, must have previously given birth to a live child;
- the agreement must be signed by the birth mother and her husband or de facto partner (where relevant), the arranged parent/s, and a donor and spouse or de facto partner of the donor (where relevant);
- all parties required to sign the agreement must have received counselling about the implications of surrogacy, and been psychologically assessed as suitable for the arrangement, and received independent legal advice; and
- the birth mother, arranged parents and any donor must have been assessed by a medical practitioner as medically suitable to be involved in the surrogacy arrangements.
Applying for a parentage order
An application for a parentage order may be lodged with the court 28 days after the child is born, but no later than 6 months, unless extenuating circumstances exist and the court grants leave to apply later.
The child’s birth parent/s must freely consent to the proposed order and the child must at the time of application, and grant of the order, be in the daily care of the arranged parents.
In most cases, the birth parents and arranged parents must have a written agreement concerning the child to promote his or her long-term welfare. The agreement may include the rights and responsibilities of the respective parties, any time the child is to spend with the birth parents or other persons and any information that the parties are required to exchange or provide to another party.
The court may make the parentage order if all of the requirements for approval of a surrogacy agreement (above) have been met and, in all circumstances, it is in the best interests of the child to do so.
In limited circumstances some requirements may be waived.
The effect of a parentage order
The effect of granting a parentage order is that:
- the child becomes the child of the arranged parents;
- the arranged parents become the parents of that child;
- the child is no longer a child of the birth parent;
- the birth parent is no longer the parent of the child; and
- any appointment as guardian of the child in a will of the birth parent is void.
The Family Law Act 1975 (Cth) and Family Court Act (WA) govern matters affecting children in the event of a marriage or partnership breakdown and specifically recognises children subject to a transfer of parentage under a surrogacy arrangement. This means that matters concerning the care and responsibility for that child or children, in the event of separation, can be determined under that Act the same as for any other child.
Conclusion
Surrogacy arrangements can deliver excellent outcomes for those involved, however there are significant legal, practical and emotional considerations.
If you are interested in entering a surrogacy arrangement, whether as a birth parent or intended parents, it is important to understand the legal processes required to ensure the arrangement works for all concerned.
If you or someone you know wants more information or needs help or advice, please contact our family lawyers on 08 9221 5775 or email enquiries@klimekwijay.com.