Surrogacy And Health Law

Contributed by Robin Gibson and current at 16 December 2021.

Sometimes couples are unable to conceive and give birth to their own children. This situation may be because a woman either has no womb, or if she has one, is unable to become pregnant. However, it is sometimes possible for the husband’s sperm to be used to fertilise a donated egg or, if the woman’s eggs can be harvested, sperm may be used to fertilise an egg in vitro (literally, in glass meaning in a petrie dish or similar procedure). On these occasions, the fertilised egg may be implanted into the womb of another woman, a surrogate, who takes the fertilised egg through to pregnancy term. Surrogacy does not refer to normal in vitro fertilisation procedures where eggs are harvested, fertilised with male sperm and implanted back into the woman’s uterus. Similarly, surrogacy does not refer to pregnancy with donated sperm, artificial insemination. All these procedures are permitted in Australia, subject to strict guidelines.

Surrogacy was first legislated in Australia in the Australian Capital Territory. Its regulation is now governed by the Parentage Act 2004 (ACT).

Parentage Act 2004 (ACT) makes detailed presumptions about parentage of a child. Section 11 of the Parentage Act 2004 (ACT) deals with presumptions of parentage following a procedure which includes surrogacy, artificial insemination, in vitro fertilisation or any other non-sexual way which results in a pregnancy. Currently, the presumptions do not allow more than two parents at any one time. Recent research aimed at eliminating some genetically transmitted diseases has involved three ‘parents’ which suggests that if that procedure becomes routine, the Parentage Act 2004 (ACT) may require amendment. Further information about mitochondrial donation can be found at https://www.health.gov.au/initiatives-and-programs/mitochondrial-donation. The Supreme Court is tasked with making declarations of parentage, but may refuse to hear an application which it considers would not be in the best interests of the child. Part 3 of the Parentage Act 2004 (ACT) makes children all of equal status no matter the circumstances under which that child is born, and also applies that philosophy to inheritance.

Part 4 of the Parentage Act 2004 (ACT) refers to substitute parent agreements and makes it clear that only altruistic surrogacy is permitted (ie no commercial surrogacy). The surrogate is only entitled to have her reasonable expenses paid. It is also clear that the surrogate is entitled to keep the child after its birth, despite having had her expenses paid by proposed parents. No parentage order will be made by the Supreme Court unless both birth parents agree. There are strict guidelines about medical, psychological and legal involvement in the process.

In Australia, no-one may advertise in any way for a surrogate or enter into any commercial agreement with respect to surrogacy. Problems raised by surrogacy arrangements made in other countries (particularly commercial surrogacy agreements) have been the subject of widespread, adverse publicity.

Contravention of any provision of the Act is punishable under the Criminal Code.

Surrogacy and the Family Law

Introduction

In 2014 the saga of Baby Gammy hit Australian News Media. This was the story of an Australian couple who had entered into a commercial surrogacy agreement with a woman in Thailand. That woman had twins, one of whom had Down syndrome. The Australian couple then left Baby Gammy with the surrogate mother in Thailand and brought the twin sister back to Australia. This story captured the attention of Australians for the ethical, moral and legal issues involved in this case. This is one example of the larger role that surrogacy is playing in Australian lives, and by default, the Australian family law system. The increased awareness of surrogacy has not resulted in any less confusions about the impact on family law. It is also complicated by the intersection of state/territory laws regarding parentage orders.

This chapter will explore the impact of surrogacy on the family law act and how it is affected by the laws of the Australian Capital Territory.

Terms:

In this chapter, the surrogate is the person who carries a child to term and delivers the child. This person may also be referred to as a birth parent.

The people who are intending to raise the child from birth and be that child’s parents will be referred to as “the intended parents”.

Surrogacy Agreements

In Australia, commercial surrogacy (compensation for surrogacy) is not permitted. All surrogacy agreements in Australia must be altruistic – meaning there is no payment made to the surrogate in exchange for being the surrogate. The only payment that can be made is reimbursement for medical expenses incurred. Under the Parentage Act 2004 (ACT), it is a criminal offence to enter into a commercial surrogacy agreement and the penalty can range from a fine to imprisonment (or both). However, for a usual resident of the ACT, it may be a criminal offence for that person to enter into a commercial surrogacy agreement in Australia or overseas.

Surrogacy Agreements and the Australian Capital Territory

For a surrogacy agreement to be valid in the ACT, there are a number of requirements to ensure the agreement is valid. Those requirements are that:

- Both the surrogate and the intended parents have made an agreement that the surrogate will attempt to become pregnant and the resulting child is to be the child of the intended parents;

- The child was conceived as part of a procedure in the ACT;

- The surrogate is not a genetic parent of the child;

- At least one of the intended parent is a genetic parent of the child;

- The intended parent/s are at least 18 years of age;

It is a criminal offence for a person to advertise their need for or willingness to be a surrogate in the ACT.

It is also worth noting that an agreement made in the ACT is not enforceable in other states or territories.

What happens once a surrogate gives birth?

Once a surrogate gives birth, there is a presumption in the ACT laws that the surrogate (and any partner she may have) is the parent of the child. There is also a presumption made that if a child is born as a result of an egg or sperm donation, the donor is NOT presumed to be the parent of the child.

These presumptions are in the Parentage Act 2004 (ACT). These presumptions are rebuttable, not binding.

How will the ACT laws recognise the correct parent?

The intended parent/s will need to make an application to the Supreme Court for a parentage order using the Parentage Act 2004. This application can be made by one or both of the intended parents and asks the Court to order that the child is legally considered to be the child of the intended parents.

This application must be made when the child is aged between 6 weeks and 6 months.

For the Court to make that order, there is a number of factors they will look at including:

- Where the child is living at the time the application is made;

- Whether the intended parents are 18;

- Whether both intended parents agree to the application (especially if it is only one intended parent making the application);

- If there is no consent of one of the intended parents, whether that person cannot be contacted to obtain any consent;

- Whether any payment or reward was given between the intended parent/s and the surrogate/s that relate to the application, the surrogacy agreement, handing over the child to the intended parents, or any other arrangement related to the child (this does not include any expenses that were reasonably incurred);

- Whether both intended parent/s and the surrogate/s have received independent counselling and assessment;

- Whether, if a surrogate has died, there is any evidence that the surrogate no longer wanted the intended parent/s to obtain a parentage order; and

- Any other factor that the Court considers necessary.

Surrogacy and the Australian Family Law Act 1975

The issue of surrogacy arrangements and parenting can become further complicated when the Family Law Act 1975 (“FLA”) is involved. The way in which the FLA intersects with state/territory laws can become increasingly muddled and seem almost inconsistent. This is particularly the case where the intended parents and a surrogate end up in a dispute.

Applying for parenting orders

Where there is no dispute, and the intended parents have made (and been granted) a parentage declaration under ACT legislation, the intended parents may wish to make a further application to the family courts. That application would be made to confirm that the intended parents have parental responsibility for the child and orders that the child is to live with them. The FLA explicitly states in section 60HB that where a state/territory court has made a declaration of parentage about a child, the FLA will applies to that child and their parents. Essentially, the FLA can make parenting orders in relation to the child born from surrogacy as they would if it were a child born/adopted by the applicant parents.

When the family courts are making an order about parental responsibility or contact arrangements, the Court will adopt the usual approach of making an order that is in the best interests of the child.

Applying for A Parentage Declaration in the family courts

The Family Law Act 1975 does have a legislative pathway to make declarations of parentage. However, in recent times judges in the Family Laws Courts have expressed a clear reluctance to make a declaration of parentage for a child born from surrogacy. This is because the Courts have noted that Section 60HB says that the FLA applies to the child when a state/territory legislation has been used by the intended parents to make a declaration of parentage. As all states and territories do have legislation for the purpose of making parentage declarations the family court is not prepared to make a parentage declarations.

Where to get help?

Legal Aid ACT
Legal Aid may be able to provide limited assistance or direction towards other practitioners specialising in this area. Please contact Legal Aid ACT for further information.

Tel: 1300 654 314
Website: http://www.legalaidact.org.au/

The Law Society of the ACT

Many private lawyers can provide assistance with family law issues. The ACT Law Society can provide contact details of lawyers who specialise in this field.
Tel: (02) 6274 0300
Level 4, 1 Farrell Place, Canberra City

Federal Circuit Court of Australia (Canberra)

This Court has information about surrogacy arrangements and forms required to apply for parenting orders.

Tel: (02) 6257 1586

www.federalcircuitcourt.gov.au

Surrogacy Australia

This not-for-profit organisation supports Australians in all states and territories who are planning on or already are parents through a surrogacy arrangement.

Tel: 0411 871 800

Mailing Address: 2/150 Sailors Bay Rd, Northbridge NSW 2063

Email: enquiries@surrogacyaustralia.org