Surrogacy in Queensland
Posted: 29th September 2014
Posted in: News
Posted by: Dean Evans, Partner
In Queensland, you can enter a “surrogacy arrangement”. You can agree that another person will give birth to your child through the assistance of a fertility clinic or fertility specialist.
“Commercial surrogacy” or where a surrogate receives payment for acting as a surrogate is illegal in Queensland. You can agree to pay the birth mother’s reasonable surrogacy costs.
Reasonable surrogacy costs include costs associated with the birth mother becoming or trying to become pregnant, her pregnancy and birth, legal costs and costs associated with the parentage order court proceedings.
Surrogacy arrangements in Queensland are regulated by the Surrogacy Act 2010. The legislation provides that you cannot:
• Enter into a commercial surrogacy arrangement ie. money changes hands.
• Advertise for any surrogacy arrangement – whether as birth mother or if you are seeking someone to act as birth mother.
• Receive any fees for arranging a surrogacy.
Who can enter into a surrogacy arrangement?
In Queensland, any person, regardless of their relationship status can enter into a non-commercial surrogacy arrangement. A surrogate and the intended parents must be at least 25 years of age.
What are the birth mother’s rights?
The birth mother has the right to manage her pregnancy the same as any other pregnant woman.
What is required to enter a surrogacy arrangement?
The Surrogacy Act 2010 sets out the legal requirements that must be met to ensure that you can obtain a court order to transfer parentage of a child born of a surrogacy arrangement. A surrogacy arrangement must be entered by all parties (birth mother, birth mother’s spouse and intended parents). All parties must obtain independent legal advice. All parties must also participate in counselling before being able to commence treatment with a fertility specialist.
What happens after the baby is born?
Upon the birth of the child, the birth mother is the child’s legal parent and guardian, irrespective of whether she has any biological connection to the child.
The birth mother will be required to transfer the parentage of the child to the intended parents by way of an Application to the Children’s Court of Queensland.
A report from a further counsellor must be obtained after the child’s birth. The child must also live with the intended parents for 28 days before they apply to the court for an order transferring parentage. The child must be between 28 days and 6 months old when you apply.
Prior to transferring the parentage of the child to the intended parents, the Court needs to be satisfied:
• That there was a medical or social need for the surrogacy;
• That the parties have participated in independent counselling and obtained independent legal advice; and
• That the transfer of parentage from the birth mother and her spouse (if any) to the intended parents is in the best interest and wellbeing of the child.
Outcomes of Parental Orders
If the court grants a parentage order in favour of the intended parents, it means that the birth parents no longer have a parental relationship with the child. The parentage order can then be registered with the Registry of Births Deaths and Marriages.