The Surrogacy Act (“the Act”) came into effect in Queensland on 1 June 2010.
The Act legalizes altruistic or non-profitable surrogacy agreements and prohibits commercial surrogacy arrangements. A commercial surrogacy arrangement is where there is payment to any of the parties for entering into the arrangement.
What is a surrogacy arrangement?
Surrogacy is an arrangement whereby a woman (the “birth mother”) agrees to become pregnant, with the intention of handing over the child to a person or a couple (“the intended parent”). The agreement must be established prior to the pregnancy.
Any woman over 25 years of age may enter into a surrogacy agreement, provided that she complies with the conditions under the Act.
An intended parent is either a male, or an eligible woman and may either be single or in a couple, including a same sex couple. The intended parent/s must also be at least 25 years of age prior to entering into the agreement.
The Act does not dictate how a child may be conceived and provides that the birth mother may manage her own pregnancy and birth.
Steps required for entering into a surrogacy arrangement
Prior to becoming pregnant, the birth mother and the intended parent/s must seek counselling about the surrogacy arrangement and its social and psychological implications. The parties must also obtain legal advice.
The birth mother is entitled to be reimbursed for her reasonable surrogacy costs, such as medical, legal, lost earnings and counselling expenses.
What happens following the birth of the child?
It is the responsibility of the birth mother to register the birth of the child.
The child may commence living with the intended parent immediately following its birth. Within 6 months, the intended parents may apply to the Children’s Court to transfer the parentage of the child from the birth parent to them.
Upon a child obtaining the age of 18 years, the child may apply to the court to have access to the court records in relation to the application to transfer the child’s parentage.
The court has the option of providing the child with all, or part of the court records. This means that the court may disclose the birth mother’s identity to the child, even if she did not consent for them to do so.
In the event the birth mother wishes to keep the child, then the intended parents may file an application to the Family Court for an order about where the child is to live.
When faced with such application, the court must have regard to the best interests of the child as set out in the Family Law Act.
Tuskeen Jacobs, has assisted couples wishing to enter into surrogacy arrangements. She is the first lawyer to publish and inform Queensland lawyers about the law surrounding surrogacy.
For confidential advice and assistance about your personal situation, please contact Queensland Law Society Accredited Specialist in family law, Tuskeen Jacobs at firstname.lastname@example.org or 07 3009 8444.