Surrogacy and Adoption

Infertility is an issue faced by many couples, and as a result of this surrogacy has emerged as an option to create a family. This is particularly due to the current uncertainty surrounding adoption in Australia.

As commercial surrogacy (where a payment is made for the surrogate to carry the child or participate in the process) is prohibited in Australia, finding a surrogate can be a difficult process with many couples turning to friends and family members. This is known as altruistic surrogacy.

Surrogate mother’s must be 25 years or older and must have previously given birth. Further, the surrogate’s own genetic material must not be used in the conception.

Agreements to enter into altruistic surrogacy are not legally binding and therefore unenforceable in Australia. However the Court may have regard to any written agreement in determining any Court application regarding the future arrangements for the child a child borne of surrogacy.

Under the Family Law Act 1975 (Cth) upon the birth of the child, the surrogate mother and her partner will be presumed to be the child’s parents, and will be named on the birth certificate. As a result of this, it will be necessary for the intended parents to apply to the Court to have their names included on the birth certificate. The intended parents may also wish to obtain parenting orders from the Court to confirm their status as parents of the child.

If you are contemplating entering into a surrogacy arrangement, it is important that you obtain detailed legal advice as to the implications of such arrangements, and in relation to obtaining a formal agreement in writing as to the role the surrogate intends to take in the child’s life. Our team can provide you with detailed advice on this discrete area of law.