Australia: Family law insights: surrogacy laws

Last Updated: 26 September 2016
Article by Justine Woods

Justine Woods, a partner in our family law team recently received an enquiry from a Grade 12 legal studies student at a rural high school requesting commentary from a legal professional regarding the current surrogacy laws. Justine was, of course, more than happy to share her knowledge on the subject.

Does it cause any major disruptions or problems for legal professionals that surrogacy arrangements aren't legally enforceable?

Obviously, it is very difficult as lawyers console intended parents and advise that they have no legal rights if and when a surrogate exercises her legal rights to either abort the child or retain the child.

On the other hand, should the intended parents choose not to accept the child the surrogate mother has no legal rights except to be compensated for her surrogacy costs. Section 11 of the Surrogacy Act 2010 (Qld) defines 'surrogacy costs' as the costs associated with becoming pregnant, giving birth and being party to proceedings in relation to a parentage order. There is no discernible right to child maintenance and the surrogate might then have to consider the process of adopting the child to another family.

Could you give me a bit of an insight into how the relevant stakeholders are affected?

Surrogates, intended parents and children are affected by surrogacy laws in relation to medical, emotional, legal and financial issues (Victorian State Government, 2016).

What are the rights of the parties involved in a surrogacy arrangement? And does the law effectively balance the rights of all parties involved?

Section 21 of the Surrogacy Act 2010 (Qld) allows parents in a surrogacy arrangement to apply for a parentage order after 21 days has passed since the birth of the child. In MJW v AJL [2013] QChC 5 the parents successfully received a parentage order that allowed them to receive legal recognition as parents. The surrogate mother did not dispute this application. This is an ideal outcome and a view of the surrogacy law working well.

It is difficult to balance the rights of the child, the surrogate and the intended parents especially in such an emotionally charged legal relationship. I believe that in an altruistic surrogacy relationship, it is appropriate to allow the surrogate mother to refuse to relinquish the child.

Is it common for surrogacy arrangements go wrong (i.e. intended parents refusing to reimburse medical or legal fees, or surrogate refusing to relinquish the child)?

There has been very little litigation in Australian courts concerning a domestic surrogate refusing to relinquish a child or domestic intended parents refusing to compensate a surrogate. That's not to say there isn't a problem, merely that parties settle their disputes privately.

Why do you believe commercial surrogacy is illegal in Australia?

Section 5 of the Surrogacy Act 2010 (Qld) provides that the purpose of surrogacy laws is to safeguard the interests of the child and to prevent exploitation of vulnerable young women.

The Queensland Government's aim in criminalising commercial surrogacy is to deter couples from entering into such arrangements. However, there has been a recent study that shows that criminalising commercial surrogacy only deterred less than 10% of intended parents (Everingham, et. al, 2014). So, arguably, criminalising commercial surrogacy is not having the intended effect.

Do you think the surrogacy laws should be consistent in each state in Australia? If so, why?

The differences in legislation between the states make it very confusing and risky for intended parents to navigate the surrogacy process (Millbank, 2011). Intended parents need to seek legal advice to ensure their arrangements are legal and meet the relevant criteria in their particular state.

Currently, some states prohibit surrogacy for single people and same sex couples; others do not. Some states permit overseas surrogacy; others criminalise overseas surrogacy (Human Rights Law Centre, 2015).

A national law would remove some of that confusion, discrimination and risk.

Would you say that surrogacy is still a fairly uncommon way of having a child?

The numbers of people entering surrogacy arrangements have been on the rise. However, in 2011 just 21 births were recorded via regulated surrogacy (Malcaldowie, et. al., 2013). So I would say it's still very uncommon.

Are there any ways you think the laws surrounding surrogacy could be improved?

Surrogacy laws should deal with the event where intended parents refuse to take the child and set out how the surrogate mother might obtain child maintenance.

Surrogacy laws should regulate and not criminalise overseas surrogacy arrangements. By regulating international surrogacy arrangements the state governments can ensure Australia's compliance with international human rights obligations, protect intended parents and protect intended surrogates by ensuring they give informed consent, receive compensation for costs and understand they have the ability to refuse to relinquish the child (House of Representatives Standing Committee on Social Policy and Legal Affairs, 24 March 2015).

Sources

  • Everingham, et. al. (2014). Australians' use of surrogacy. The Medical Journal of Australia, 201(5), 270.
  • House of Representatives Standing Committee on Social Policy and Legal Affairs. (24 March 2015). Roundtable on Surrogacy.
  • Human Rights Law Centre. (2015, April 17). Regulating Surrogacy in Australia. Retrieved from http://hrlc.org.au/regulating-surrogacy-in-australia/>
  • Malcaldowie, et. al. (2013). Assisted Reproductive Technology in Australia and New Zealand 2011. Sydney National Perinatal Epidemiology and Statistics Unit, University of New South Wales.
  • Millbank, J. (2011). The New Surrogacy Parentage Laws in Australia: Cautious Regulation or '25 Brick Walls'? Melbourne University Law Review, 35(1), 165.
  • Victorian State Government. (2016, August). Surrogacy. Retrieved from Better Health Channel: https://www.betterhealth.vic.gov.au/health/healthyliving/surrogacy

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