Pre-Covid, surrogacy was becoming increasingly popular in Australia. Surrogacy is a process whereby a woman (the surrogate) offers to carry a baby on behalf of another person or couple, who will then become the child’s parents after birth (the intended parents).
There are two types of surrogacy arrangements – altruistic surrogacy arrangements and commercial surrogacy arrangements.
An altruistic surrogacy arrangement is legal in New South Wales and involves a surrogate who does not receive any compensation or payment for her services. The surrogate can, however, be compensated for any out-of-pocket expenses related to the surrogacy.
A commercial surrogacy arrangement involves the surrogate mother receiving payment for her services. In New South Wales, the Surrogacy Act 2010 (NSW) makes it a criminal offence for residents of New South Wales to enter into a commercial surrogacy arrangement.
The Surrogacy Act
In New South Wales, a woman who gives birth to a child conceived by way of an artificial conception procedure is presumed to be the parent of the child.
The NSW Surrogacy Act was introduced to allow intended parents of a child born through a surrogacy arrangement to gain full parenting rights by applying to the Supreme Court of New South Wales for a Parentage Order.
The Supreme Court, however, is only able to make a Parentage Order if certain pre-conditions are met by the parties. They include the following:
- the surrogacy arrangement must be an altruistic one;
- the intended parents need to have a social or medical need for surrogacy;
- the intended parents need to be a member of a couple;
- the birth mother must be over 25 years of age;
- each of the intended parents must be at least 18 years of age;
- the child must be living with the intended parents at the time of the application;
- the intended parents must be resident in New South Wales at the time of the hearing;
- the Surrogacy arrangement must be in writing and signed by all parties; and
- each of the parties must have undergone counselling and obtained legal advice prior to entering into the arrangement.
Applications for a Parentage Order must be commenced in the Supreme Court of New South Wales by the intended parents not less than 30 days and not more than 6 months after the birth of a child.
Once a Parentage Order is made the intended parents obtain full parenting rights for the child and have their names placed on the child’s Birth Certificate.
If you are considering a surrogacy arrangement, contact Antonia Fontana or Daniel Naddaf of this firm for initial advice, on 02 9221 8390.