The Surrogacy Act 2010 (Qld) ("The Act") came into effect in Queensland on 1 June 2010. The Act provides the framework for the regulation of altruistic surrogacy agreements and prohibits commercial surrogacy arrangements.
The purpose of this article is to provide further information at women who are considering becoming surrogates.
What is a surrogacy arrangement?
Surrogacy is an arrangement whereby a woman (known as the "birth mother") agrees to become pregnant, with the intention of handing over the child to a person or a couple ("the intended parent(s)"). The agreement must be established prior to the pregnancy.
Can I be a surrogate?
Any woman that has capacity to make decisions for herself and is over 25 years of age may enter into a surrogacy agreement, provided that she complies with the conditions under the Surrogacy Act 2010.
There is no requirement that you be related to or associated with the intended parent. Given the complications that may arise, we would recommend though that you only consider entering into such an arrangement with a trusted family member or close friend.
Your spouse may also be a party to the surrogacy agreement. Typically, he or she would also be considered the child's birth parent, prior to an order transferring parentage being obtained.
Who can be an intended parent?
An intended parent is either a male, or an eligible woman, and may either be single or in a couple. The intended parent(s) must also be at least 25 years of age prior to entering into the agreement.
Generally, an eligible woman is a woman who is unable to conceive or carry a pregnancy successfully, or alternatively, is likely to conceive a child affected by a genetic condition or a child that is unlikely to survive a pregnancy. The Act further defines an eligible woman and the intended parents' lawyer should discuss their eligibility in more detail with them.
What is the first step?
Prior to becoming pregnant, you and the intended parents must seek counselling and independent legal advice.
Firstly, should obtain counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications. You must not consult the same counsellor as the intended parents.
Secondly, you should seek independent legal advice from a family lawyer. You and the intended parents must not consult the same law firm.
What information will I receive from the lawyer?
Each arrangement will be different and personal to your circumstances. It is important that you receive proper and candid advice from a lawyer that understands the Act and family law.
A lawyer should advise you the following—
- Whether such an agreement is enforceable
- Your legal obligations under the arrangement and the Act
- What happens if you don't want to hand over the child
- Whether child support would be payable if you don't want to hand over the child
- What happens if the intended parents don't want the child
- The legal implications of a parentage order (this is discussed in further detail later in this article)
- Whether a child will know about their birth parentage
In the event that you and the intended parents have sought counselling and independent legal advice, and still wish to go ahead with the arrangement, you may then execute a written agreement.
What needs to be in the agreement?
We recommend that you have your lawyer draft your agreement. In the event that the intended parents' lawyer drafts the agreement, we advise that you should not execute it until you have provided your lawyer with a copy and you have had the opportunity to discuss each provision with you and made amendments, if necessary.
The Act does not specifically provide any conditions that must be included in the Agreement.
However, as the surrogate, you are entitled to be reimbursed your reasonable surrogacy costs. An agreement should further clarify what expenses are considered to be reasonable in the circumstances. The agreement should also provide an overview about arrangement and parties generally.
Can I get paid to be a surrogate?
The Act prohibits commercial surrogacy arrangements. This means that it is illegal to profit from such an agreement.
However, as previously stated, you are entitled to be reimbursed reasonable costs in relation to the arrangement such as medical, legal and counselling expenses. Your lawyer should discuss with you in further detail the expenses that are to be included in the agreement and what you are entitled to be reimbursed.
Are there any restrictions on conception?
The Act does not dictate or prohibit how a child may be conceived. Accordingly, there are no restrictions, provided that the conception is otherwise legal.
Can I manage my own pregnancy?
There is a possibility that you and the intended parents may disagree with how you manage your pregnancy. Some issues that may arise include—
- Whether an amniocentesis should be undertaken
- Whether you drink small amounts of alcohol during the pregnancy
- Whether you have a natural birth or caesarean
The Act provides that you have the same rights to manage your own pregnancy and birth as any other woman. Effectively, you are the decision-maker with regards to the unborn child and pregnancy, notwithstanding the intended parents' contrary wishes.
What happens when the baby is born?
As you are the birth parent, it is your responsibility to register the birth of the child. Until the parentage is transferred to the intended parents, you are considered to be the child's parent. However, from birth the child may live with the intended parents but you remain legally responsible for the child until the transfer of parentage.
How is parentage transferred to the intended parents?
Twenty-eight days after the child has begun residing with the intended parents (and not more than six months after the birth), the intended parents may apply to the Children's Court to transfer the parentage of the child from the birth parents to them. Several documents must be filed, including an affidavit sworn by you, being the birth mother, an affidavit of your lawyer and an affidavit of your counsellor. Your lawyer should assist you with preparing these documents.
A parentage order will not be made in this manner without your consent.
The intended parents will also arrange a surrogacy guidance report. This will require you to meet with an independent and appropriately qualified counsellor (other than the counsellor you met with prior to entering into the agreement), who will form an opinion, inter alia, whether the making of the parentage order will be in the best interests of the child.
What happens if I no longer want to transfer the parentage of the child to the intended parents?
In the event you change your mind and wish to keep the child, then it is up to the intended parents to make an application to the family law courts to determine parentage. Until such an order is made, you are legally the parent of that child.
The family law courts will thereafter determine which person should be given parental responsibility, in light of the child's best interests.
What happens if the intended parents no longer want the child?
There is a risk that prior to a parentage order being made, the intended parents may no longer want the child. Until a court orders otherwise, you remain the child's parent.
Effectively, you have the option of either keeping the child, or consenting to the child's adoption by another person. In these circumstances you should consult your lawyer who will discuss your options and obligations in more detail.
Will the child ever find out who its birth parents are?
Upon a child obtaining the age of eighteen years, the child may apply to the court to have access to the record of proceedings in relation to the application to transfer the child's parentage.
The court has the option of providing the child with all or part of the record of proceedings. This means that the court may disclose your identity to the child, even if you do not consent for them to do so.
There are many legal and emotional complications involved in entering into a surrogacy arrangement and such a decision should not be made lightly. Provided however, if all parties receive expert advice from their lawyers and counsellors, and a serious consideration of all possible consequences, then the parties have the framework for a joyous outcome for all involved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.