Deborah Awyzio Accredited Family Law Specialist DA Family Lawyers, Brisbane

Surrogacy Lunchbox Seminar 3 February 2016 Deborah Awyzio

History of Surrogacy From 16 February 2010 altruistic surrogacy became legal in Queensland Surrogacy was illegal in Queensland prior to the Surrogacy Act 2010 (Qld) http://www.legislation.qld.gov.au/LEGI SLTN/CURRENT/S/SurrogacyA10.pdf

Other States NSW – Surrogacy Act 2010 ACT – Parentage Act 2004 Surrogacy agreement (prior to conception) Commercial surrogacy is illegal Legal advice is required before entering into agreement ACT – Parentage Act 2004 Substitute parent agreements VIC – Assisted Reproductive Treatment Act 2008 SA – Family Relationships Act 1975 No same sex surrogacy

Other States WA – Surrogacy Act 2008 TAS – Surrogacy Act 2012 Western Australia Family Court has jurisdiction to make parenting orders TAS – Surrogacy Act 2012 NT – There is no legislation An article with a good comparison of different state legislation http://www.wlsa.org.au/uploads/submission- resources/Surrogacy_and_Family_Law.pdf

What is the purpose of the Surrogacy Act? Section 5 main objects: To regulate surrogacy arrangements To prohibit commercial surrogacy Provide for the transfer of parentage of a child born as a result of a surrogacy arrangement Establish procedures to ensure parties understand the nature and implications of a surrogacy arrangement To safeguard a child (born of surrogacy) wellbeing and best interests

Paramount Consideration Section 6 provides that the act will be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both in childhood and for the rest of the child’s life, are paramount

Principles to be applied Children born of surrogacy should be: 1. Cared for in a way that Ensures a safe, stable and nurturing family and home life Promotes openness and honesty about the child’s birth parentage Promotes the development of the child’s emotional, mental, physical and social wellbeing 2. Given the same level of protection and support regardless of How the child was conceived The genetic connection between the child and parents The relationship status of the persons who become the parents

The long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted The autonomy of consenting adults in their private lives should be respected.

What is a surrogacy arrangement? Agreement between a woman and another person or persons, where the woman agrees to become or try to become pregnant with the intention that: The child born will not be treated as a child of the woman The woman will relinquish custody and guardianship of the child to the other person/s The other person/s agree to become permanently responsible for custody and guardianship of the child Section 7

Terms used Birth parent Person recognised at law as a parent of the child at birth Intended Parent Person who agrees to become permanently responsible for custody and guardianship of a child Birth mother Woman who agrees to become pregnant Birth mother’s spouse Spouse of the birth mother at time of entering into surrogacy arrangement

Prohibited under surrogacy arrangement and Act Receipt of a payment, reward or other material benefit or advantage for Entering into surrogacy arrangement Permanently relinquishing custody and guardianship Consenting to making of a parentage order This would constitute a commercial surrogacy arrangement and is punishable by a maximum penalty of three (3) years imprisonment Also cannot publish an advertisement, statement, notice or other material seeking someone to enter into a surrogacy arrangement

Why enter into a surrogacy arrangement? To apply for a parentage order once the child is born Application is to be made in the Children’s Court for a parentage order (Section 13) A parentage order transfers the parentage of a child born as a result of a surrogacy arrangement Amendment can then be made to child’s birth certificate

Requirements for a parentage order The relief is discretionary (“may”) Must be made between 28 days and 6 months of the child’s birth (can apply for leave out of time) If there were two intended parents under the surrogacy arrangement, the application for a parentage order is made by both intended parents if they are still a couple. The order must be for the wellbeing and in the best interests of the child. The child must have resided with the applicant for 28 days prior to the application, be still residing with the applicant at the time of filing the application and the time of hearing of the application. There is a medical or social need for the surrogacy arrangement.

Requirements for parentage order (cont) There is a valid surrogacy arrangement: made after birth mother and spouse and intended parents received independent legal advice about the surrogacy arrangement and its implications. made after birth mother, spouse and intended parents received counselling about social and psychological implications of the surrogacy arrangement. made with the consent of the birth mother, birth mother’s spouse and the intended parents. made before the child was conceived. is in writing and signed by birth mother, birth mother’s spouse and intended parents is not a commercial surrogacy arrangement

Requirements for parentage order (cont) Birth mother, birth mother’s spouse and intended parents are all over 25 years of age when surrogacy arrangement made Birth mother, birth mother’s spouse and intended parents consent to the order at time of the hearing. Surrogacy guidance report supports making of proposed order.

Medical or social need for surrogacy Section 14 If only one intended parent, that parent is a man or eligible woman If two intended parents are: A man and eligible woman Two men Two eligible women

Eligible Woman Unable to conceive If able to conceive: Is likely to be unable (on medical grounds) either to carry a pregnancy or to give birth Is unlikely to survive a pregnancy or birth Is likely to have her health significantly affected by a pregnancy or birth Is likely to conceive: a child effected by a genetic condition or disorder (cause of which is attributable to the woman) A child unlikely to survive a pregnancy or birth A child whose health is likely to be significantly affected by a pregnancy or birth

What can be included in surrogacy arrangement Reimbursement of a birth mother’s surrogacy costs which include costs of: Trying to become pregnant. A pregnancy or birth. Being a party to a surrogacy arrangement Being a party to proceedings for a parentage order.

Examples of birth mother’s surrogacy costs Reasonable medical costs of being pregnant, pregnancy and a birth Reasonable medical costs for a child born Premium payable for private health insurance , disability and life insurance (only if it would not have been obtained but for the surrogacy arrangement) Reasonable costs of counselling before and after entering surrogacy arrangement and in relation to preparation of a surrogacy guidance report

Examples (cont) Reasonable legal costs Value of birth mother’s actual lost earnings because of leave taken during time birth happened (not more than two months) or leave when unable to work on medical grounds Travel and accommodation costs for birth mother to obtain medical treatment Travel and accommodation costs for birth mother to attend court hearing, seek legal advice

Enforceability of surrogacy arrangements A surrogacy arrangement is not enforceable An obligation to pay surrogacy costs to the birth mother is enforceable unless: A child is born as a result of the surrogacy arrangement; and The birth mother does not: relinquish custody and guardianship to the intended parent/s; or Does not consent to the making of a parentage order If the agreement contains provision about management of pregnancy, this is not enforceable as birth mother retains her rights to manage her pregnancy and birth of the child.

Documents required in support of parentage order Copy of child’s birth certificate Copy of the surrogacy arrangement Affidavit of the applicant (intended parent/s) which includes evidence of: Section 22 requirements for making of parentage order Current and proposed care arrangements for the child Understanding of the intended parents of social, psychological and legal implications of the surrogacy arrangement and the making of the parentage order Understanding of the intended parents in relation to openness and honesty about the child’s birth parentage being for the wellbeing and in the best interests of the child. The proposed name for the child The intended parents date of birth and occupation as at the date of birth of the child

Documents required in support of parentage order (cont) An affidavit of the birth mother which includes evidence of: Section 22 requirements for making of parentage order The understanding of the birth mother of the social, psychological and legal implications of the surrogacy arrangement and the making of the parentage order. The understanding of the birth mother in relation to the openness and honesty about the child’s birth parentage being for the wellbeing, and in the best interests of the child That she did not receive any payment, reward or material benefit or advantage, other than her surrogacy costs The birth mother’s date of birth

Documents required in support of parentage order (cont) Affidavit of birth mother’s spouse (if one) Affidavit of another birth parent (if one) Affidavit of lawyer of each party confirming independent legal advice given before surrogacy arrangement entered into Affidavit of counsellor for each of the parties confirming counselling provided prior to entering into surrogacy arrangement Affidavit of counsellor attaching a surrogacy guidance report If one of the intended parents is an eligible woman, an affidavit of a medical practitioner verifying the woman is an eligible woman

Lawyer’s affidavit Section 30 You must verify that you provided advice prior to entry into surrogacy arrangement about: The unenforceable nature of the arrangement Person’s legal obligations under the arrangement and Act Legal implications if birth mother does not relinquish the child, including child support implications Legal implications if either or all of the birth mother or intended parents don’t want to be permanently responsible for the child Legal implications of the making of a parentage order. That the act promotes openness and honesty about the child’s birth parentage You also need to provide evidence that it is your belief that the person appeared to understand the legal advice given.

Questions