IVF, Surrogacy and Parentage

Surrogacy and IVF are becoming increasingly popular in Australia as an alternative for couples who cannot conceive children.  More people – both couples and singles – are starting their parenting journeys through surrogacy, these days.  However, the legislation in this area of law is always developing and differs between states and territories, so it is important to seek legal advice and support.

Surrogacy is regulated by the States, each of which has its own legislation. The applicable laws are those in the State where the intended parents live.

Commercial surrogacy is illegal in all States of Australia, and all surrogacy in Australia must be “altruistic” in nature.  The intended parents can however enter into a legally enforceable agreement whereby they agree to cover the birth mother’s expenses in relation to the pregnancy and birth.

In New South Wales it is important that, before a child is conceived, the surrogate parents and the intended parents enter into a written agreement, that is usually called an “Altruistic Surrogacy Agreement”.  This is compulsory if the parties wish to eventually apply for a Parentage Order.  The surrogate parents and the intended parents must also seek independent legal advice in relation to the surrogacy.

A child conceived through IVF is legally considered to be the child of the birth mother, but the intended parents can apply for parentage to be transferred to them. Donors have no legal or financial obligations.

Once the child is born as a result of the artificial conception procedure, the birth mother and her partner are listed on the child’s Birth Certificate.  However, the intended parents should then consider applying to the Supreme Court of New South Wales for a Parentage Order, whereby full parental rights are transferred from the birth parents to them.  As a result, the Birth Certificate can be re-issued, showing the names of the intended parents, instead of the surrogate and her partner. All parties must receive legal advice and counselling to be eligible to apply for a parentage order.

Whether you are involved in a surrogacy arrangement, or you are an IVF donor or recipient, Dimocks can help you:-

  • draw up an altruistic surrogacy agreement
  • apply for a parentage order
  • understand your rights and responsibilities as a legal parent.

Children born of IVF and surrogacy, and their parents, gain important rights and protections when parentage is legally conferred. Legal parents have the right to make medical decisions and apply for passports for their children, for example.

A presumption of parentage can also have significant consequences in terms of whether you have parental responsibility for a child, or can seek or be compelled to contribute financial support for a child.

If you are planning to be a surrogate or an intended parent, contact us to book your initial conference and obtain the legal advice required. 02 9221 8390

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IVF, surrogacy and parentage

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