Surrogacy and Parentage Under the Family Law Act

Surrogacy and parentage constitute two facets of Australia’s Family Law Act that require additional clarification, interpretation or possible reconsideration. To start with, specific sections of the Family Law Act are proposed to regulate various matters related to surrogacy and recognition, such as the recognition of parental status stemming from the use of surrogacy, etc. However, the wording of the statutory provisions does not always make it clear whether a certain part of the Act has application to a particular surrogacy related matter. In this connection, it is often vital to have recourse to case law.

The conventional definition of surrogacy under Australian case law is that it is an arrangement whereby a woman, the surrogate mother, consents to bear a child for another individual or couple. There is a wide range of legal forms of surrogacy under Australian law. Thus, ‘genetic’ or ‘partial’ surrogacy pertains to the engagement of the surrogate mother’s egg and the intended father’s sperm. On the other hand, ‘gestational’ or ‘full’ surrogacy means agreements whereby the surrogate mother does not provide her own genetic material for the purpose of conception.

Gestational surrogacy in Australia has been utilised due to IVF. In the framework of this surrogacy, the intending parents are allowed to supply the genetic material, such as sperm or egg, whereas one or several donors may give gametes. All things considered, a child born in accordance with a surrogacy agreement may be genetically related to both, one, or neither intending parents. Gestational surrogacy agreements are currently more popular in Australia as compared to genetic surrogacy, while in some states the statutes regulating surrogacy agreements require a gestational surrogacy.[1] Thus, for instance, the Assisted Reproductive Treatment Act 2008 (Victoria) requires a gestational surrogacy, whereas the Surrogacy Act 2010 (Queensland) does not require a gestational surrogacy agreement.[2]

In this connection, it needs to be stated that the number of domestic surrogacy agreements in Australia is pretty small. Australians are more predisposed to enter into surrogacy agreements abroad than in the territory of Australia, and these legal arrangements, coupled with those domestic agreements that are not eligible for state or territory orders, may allow Australians to file applications in the family courts. It is difficult to accurately determine the prevalence of Australians who enter into surrogacy agreements overseas.

As far as the legal regulation of surrogacy in Australia is concerned, it needs to be highlighted that the main statutes dealing with the attribution of legal parental status for intending parents who utilise surrogacy agreements are predominantly state and territory legislation. These statutes require the intending parents to apply for a parentage order from the courts in the state or territory in which they reside. Without such an order, the surrogate mother and her partner are the child’s legal parents. In order to be eligible for such an order, the intending parents must comply with the various requirements of the relevant state or territory law. However, state and territory laws differ in their regulation of surrogacy agreements. Thus, all state and territory laws make it illegal for intending parents to enter into any form of commercial surrogacy arrangement. Additionally, the Australian Capital Territory, New South Wales and Queensland legislation have extra-territoriality provisions that extend the prohibition on entering commercial surrogacy arrangements to arrangements entered into outside the jurisdiction (such as overseas arrangements).[3]

[1] Assisted Reproductive Treatment Act 2008 [Vic], Section 44.

[2] Surrogacy Act 2010 (Queensland).

[3] Parental Act 2004 (ACT) Section 45(1); Surrogacy Act 2010 (NSW) Section 11(2); Surrogacy Act 2010 (QLD) Section 54(b).