Surrogacy has been in the news lately, raising many questions
about exactly what is the law as it effects the biological parents,
the birth mother and the child. In Australia each State has its own
laws covering surrogacy, and they do vary slightly. In NSW the law
is covered in the Surrogacy Act 2010 and came into
operation on 1 March 2011.
It defines surrogacy as an arrangement where a woman agrees to
bring to gestation in her uterus the ovum of another woman
fertilized outside the body and introduced artificially. Surrogacy
is allowed if the woman is over 25 and it is not a commercial
arrangement - however "reasonable costs" of the birth
mother can be covered.
Both sides must receive counseling and legal advice before
surrogacy can go ahead. Thirty days after the birth, the intended
parents can apply to the Supreme Court for a "parentage
order" giving them full parenting rights and their name on the
baby's birth certificate.
Commercial surrogacy is banned in every Australian state and
territory - except the Northern Territory that does not regulate
the practice. In NSW paying a woman to carry a baby in her womb for
others risks two years jail and fines up to $275,000. NSW residents
also break the law if they travel outside the State for commercial
It's hard to find a woman willing to have a fertilised egg
inserted into her uterus, then carry the fetus to term and finally
hand over the baby to the biological parents - with no compensation
for her efforts and emotional commitment.
The demand for surrogacy has grown as many couples unable to
conceive search for ways to have a child of their own. Hundreds go
overseas in search of a commercial arrangement. Australians are
among the highest per capita users of international commercial
surrogacy - about 500 a year mostly to women in India and
The fate of a baby boy born with downs syndrome to a commercial
surrogate mother in Thailand has prompted calls to review the laws
in Australia. But questions will always remain: What happens if the
biological parents won't or can't take the baby? What if
the birth mother won't give up the baby? Is the contract broken
if the fetus develops health problems? If the biological parents
don't pay up who gets the baby? Can intending parents force the
birth mother to abort the baby if they change their mind or the
fetus is unhealthy?
It's a vexed area, and anyone contemplating surrogacy
arrangements would be wise to get good legal advice before
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.
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