Surrogacy in Australia: What Prospective Parents Should Know
Surrogacy as a means to have a baby is becoming more widely acknowledged, pushed into the mainstream by media coverage of celebrities who have used a gestational surrogate. Of course, these celebrities primarily arranged their surrogacies in the United States. The legal framework for surrogacy is very different in Australia, and if you're exploring the concept with a view to starting (or expanding) your family, it's crucial that you're aware of your rights and obligations.
Types of Surrogacy
Surrogacy can be divided into two categories: commercial and altruistic. Commercial surrogacy is a paid arrangement between the surrogate and the intended parents (in many countries this arrangement is facilitated by an agency). Altruistic surrogacy is when the gestational surrogate carries the baby for the intended parents with no financial compensation (other than any reasonable costs incurred by the surrogate) and usually arises from a pre-existing relationship between the surrogate and the intended parents. Only altruistic surrogacy is permitted in Australia, with the exception of the Northern Territory where no surrogacy legislation exists (although this may change). Surrogacy laws are determined at the state or territory level and are not federal matters.
Eligibility and Surrogacy Arrangements
Unsurprisingly, surrogacy cannot be a casual arrangement. Entitlement to enter into an altruistic surrogacy depends on the intended parents' eligibility. This eligibility varies depending on the state or territory where the surrogacy takes place. You must enter into a formal, written surrogacy arrangement with the surrogate, and it can be mandatory to receive counselling, as well as independent family law advice from a qualified solicitor of your choosing.
Legal Advice Is Crucial
It's advantageous to consult a family law specialist in the early stages of the process. While locating a surrogate is the first step, it must be remembered that you cannot advertise for a surrogate. Your surrogate is likely already someone close to you; however, it's important to draft a surrogacy arrangement (which will be succeeded by a parentage order once the child is born, formalising your parental rights). Have a lawyer draft this surrogacy arrangement on your behalf to ensure that it's as indisputable as possible. Your lawyer can also confirm your eligibility, in line with the applicable legislation in your state or territory.
It might seem that surrogacy in Australia is more complex than in other jurisdictions, but it's certainly not impossible. But since it can be a complex process, it's crucial to have legal assistance from the very beginning. Talk to a lawyer with experience in family law for more information.
