1. Family Law Practitioners’ Association of Queensland Early Career Practitioners’ Workshop
26 May 2016

2. The different pathways to parenthood: Surrogacy & other roads less travelled

3. What an honour us lawyers have!
The road to your office for clients
Necessary skills to deal with clients in this area
Building relationships with other lawyers – put the pen down and pick the phone up

4. An overview Domestic surrogacy
Agreements reached during birth – parenting orders after birth
Other roads

5. Surrogacy in Queensland
Surrogacy Act 2010 (Qld)
Altruistic surrogacy arrangements are permitted and governed by the Act
An agreement or understanding between a woman and another person or persons where the woman agrees to become, or try to become, pregnant with the intention that a child born as a result of the pregnancy is to be treated as the child of the other person or persons (not of the woman and/or partner/spouse)
Relinquishment of custody and guardianship of a child born as a result of the pregnancy

6. Surrogacy: Main objects
Section 5
(a) to regulate particular matters in relation to surrogacy arrangements, including by prohibiting commercial surrogacy arrangements and providing, in particular circumstances, for the court-sanctioned transfer of parentage of a child born as a result of a surrogacy arrangement; and
(b) in the context of a surrogacy arrangement that may result in the court-sanctioned transfer of parentage of a child born as a result:
(i) to establish procedures to ensure parties to the arrangement understand its nature and implications; and
(ii) to safeguard the child's wellbeing and best interests.

7. Surrogacy: Guiding principles
Section 6
(1) This Act is to be administered according to the principle that the wellbeing and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount

8. Surrogacy: Guiding principles(cont.)
Section 6
(2) Subject to subsection (1), this Act is to be administered according to the following principles:
(a) a child born as a result of a surrogacy arrangement should be cared for in a way that:
(i) ensures a safe, stable and nurturing family and home life; and
(ii) promotes openness and honesty about the child's birth parentage; and
(iii) promotes the development of the child's emotional, mental, physical and social wellbeing;

9. Surrogacy: Guiding principles(cont.)
Section 6
(b) the same status, protection and support should be available to a child
born as a result of a surrogacy arrangement regardless of:
(i) how the child was conceived under the arrangement; or
(ii) whether there is a genetic relationship between the child and any of the parties to the arrangement; or
(iii) the relationship status of the persons who become the child's parents as a result of a transfer of parentage;
(c) the long-term health and wellbeing of parties to a surrogacy arrangement and their families should be promoted;
(d) the autonomy of consenting adults in their private lives should be respected.

10. The surrogacy process: Eligibility (cont.)
Surrogacy Act 2010 (Qld)
Section 22 sets out the requirements for the making of a Parentage Order
To apply for a parentage order as a result of a surrogacy arrangement, there must be some medical or social need for it
Age and geographical restrictions which must be adhered to

11. The surrogacy process: Eligibility (cont.)
Surrogacy Act 2010 (Qld)
Medical or social need: Section 14
If there is one intended parent under the surrogacy arrangement, there is a medical or social need for it if the intended parent is a man or an eligible woman
If there are 2 intended parents under the surrogacy arrangement, there is a medical or social need for it if the intended parents are:
(a) a man and an eligible woman;
(b) two men
(c) two eligible women

12. The surrogacy process: Eligibility (cont.)
Surrogacy Act 2010 (Qld)
An eligible woman under Section 14(2) of the Act is defined as a women who:
1. Is unable to conceive; or
2. If able to conceive:
a. is likely to be unable, on medical grounds, either to carry a pregnancy or to give birth; or
b. Either:
i. is unlikely to survive a pregnancy or birth; or
ii. Is likely to have her health significantly affected by a pregnancy or birth;

13. The surrogacy process: Eligibility (cont.)
Surrogacy Act 2010 (Qld)
c. Is likely to conceive:
i. a child affected by a genetic condition or disorder, the cause of which is attributable to the woman;
ii. The child is unlikely to survive a pregnancy or birth; or
iii. A child whose health is likely to be significantly affected by a pregnancy or birth.

14. The surrogacy process: Eligibility (cont.)
Surrogacy Act 2010 (Qld)
Age or geographical connection: Section 22(f) and (g)
For surrogacy arrangements, the following age restrictions apply:
1. The birth mother and her spouse (if any) must be at least 25 years old when the surrogacy arrangement was made; and
2. The applicant(s)/intended parent(s) must be at least 25 years old when the surrogacy arrangement was made and be resident in Queensland

15. The surrogacy process: The Surrogacy Arrangement
Surrogacy Act 2010 (Qld)
To apply for a Parentage Order, there must be a Surrogacy Arrangement in writing and signed by the birth mother, her spouse (if any) and the applicant(s) / intended parent(s)
Must be produced to the Court
Section 7 defines a Surrogacy Arrangement

16. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
Section 22(e)
A Surrogacy Arrangement can only be made:
after the birth mother and her spouse (if any) and the applicant(s) / intended parents(s) have obtained:
1. independent legal advice about the surrogacy arrangement and its implications; and
2. counselling from an appropriately qualified counsellor about its social and psychosocial implications
but before the child was conceived.

17. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
Section 22(e)
Was made with the consent of all parties
Must be in writing and signed by all parties
Must not be a commercial surrogacy arrangement

18. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
Section 15
A Surrogacy Arrangement is not enforceable
except for an obligation to pay or reimburse the birth mother’s surrogacy costs – unless:
a child is born as a result; and
the birth mother does not relinquish the custody and guardianship of the child to the intended parent; or
on an application for a parentage order (if any), the birth mother does not consent to the making of the order.

19. The surrogacy process: The Surrogacy Arrangement (cont.)
WORKSHOP
Who is the intended parent?
Who is the surrogate?
What things would you want to see in a Surrogacy Arrangement to best protect your interests?
Think about the health of the birth mother and child, the steps required, costs, treatment, the birth itself and afterwards

20. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
Matters that can be covered in a Surrogacy Arrangement, some examples
Birth mother’s pre-natal care
The things that the Birth Mother should and should not do while she is pregnant (addressing any risk and safety concerns etc.)
Any specific requests that the Intended Parents may have in relation to the Birth Mother’s conduct during her pregnancy, or any other aspect of the pregnancy
Counselling for all parties
Agreement to participate in counselling as may be determined by the counsellor

21. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
The provision of a written report by the counsellor
The costs to be borne by each party associated with legal representation, participation in the process and during the proceedings
Any specific costs which the Intended Parents will both meet, such as for the surrogate (and her partner)’s counselling, the counsellors reasonable costs and the reasonable costs of the surrogate and her partner both being legally represented during negotiations and the future application to the court
What participation the intended parents both will have in the surrogate’s life during her pregnancy, including but not limited to attending pre-natal medical appointments

22. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
Where and how the surrogate plans to give birth to the child
Who will be present during the birth
What contact is to take place between the child, once it is born, and all parties involved
When and how the child will be handed to the intended parents
When the intended parents will take the child home after it is born

23. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
Who will draft the necessary court documents and make arrangements for filing the necessary application with the Court, including the timing of this
Any specific requests that either the surrogate or her partner may have in relation to the intended parent’s future care or control of the child

24. The surrogacy process: The Surrogacy Arrangement (cont.)
Surrogacy Act 2010 (Qld)
Section 16
Despite what is agreed between the parties, in writing or not, the birth mother has the same rights to manage her pregnancy and birth as any other pregnant woman

25. The surrogacy process: Independent legal advice
Surrogacy Act 2010 (Qld)
Section 25 deals with the documents which must be produced to the court in support of an application for a parentage order
Section 25(1)(g): for all parties, affidavit under section 30 signed by a lawyer
Affidavit must address the matters mentioned in Section 22(2)(e)(i) and state a number of matters

26. The surrogacy process: Independent legal advice (cont.)
Surrogacy Act 2010 (Qld)
Section 30
(1) The affidavit sworn by the lawyer who gave legal advice to a person must address the matter mentioned in section (2)(e)(i), including by stating:
(a) separate and independent legal advice was given to the person before the surrogacy arrangement was made; and
(b) the legal advice included advice about the following matters
(i) the unenforceable nature of the arrangement, other than as provided under section 15;
(ii) the person's legal obligations under the arrangement and this Act;
(iii) the legal implications if the birth mother does not relinquish the child, including whether child support would be payable by the child's biological father under the Child Support (Assessment) Act 1989 (Cth)

27. The surrogacy process: Independent legal advice (cont.)
Surrogacy Act 2010 (Qld)
(iv) the legal implications if, after the birth of the child, the intended parents do not want to be permanently responsible for the child's custody and guardianship;
(v) the legal implications if, after the birth of the child, the birth mother, the birth mother's spouse (if any), another birth parent (if any) and the intended parents do not want to be permanently responsible for the child's custody and guardianship;
(vi) the legal implications of the making of a parentage order;
(vii) that this Act promotes openness and honesty about the child's birth parentage; and
(c) the lawyer's belief that the person appeared to understand the legal advice given.
(2) To remove any doubt, it is declared that this Act does not affect the law relating to legal professional privilege.

28. The surrogacy process:
Costs (cont.)
Surrogacy Act 2010 (Qld)
Section 22(2)(e)(vi) – must not be a commercial surrogacy arrangement

29. The surrogacy process:
Costs
Surrogacy Act 2010 (Qld)
Section 10 defines a commercial surrogacy arrangement
A surrogacy arrangement is a commercial surrogacy arrangement if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother's surrogacy costs) for the person or another person:
(a) agreeing to enter into or entering into the surrogacy arrangement; or
(b) permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or
(c) consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.

30. The surrogacy process:
Costs (cont.)
Surrogacy Act 2010 (Qld)
Section 11 meaning of birth mother’s surrogacy costs
(1) A birth mother's surrogacy costs are the birth mother's reasonable costs associated with any of the following matters:
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother and the birth mother's spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.

31. The surrogacy process:
Costs (cont.)
Surrogacy Act 2010 (Qld)
Section 11 meaning of birth mother’s surrogacy costs
(2) Without limiting subsection (1), the following amounts are a birth mother's surrogacy costs:
(a) a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1);
(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including:
(i) the cost of counselling obtained by the birth mother or the birth mother's spouse (if any) before or after entering into the surrogacy arrangement; or
(ii) the cost relating to the preparation of a surrogacy guidance report under section 32;

32. The surrogacy process:
Costs (cont.)
Surrogacy Act 2010 (Qld)
Section 11 meaning of birth mother’s surrogacy costs
(e) a reasonable legal cost for the birth mother and the birth mother's spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;
(f) the value of the birth mother's actual lost earnings because of leave taken:
(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or
(ii) for any other period during the pregnancy when the birth mother was unable to work on medical grounds;
(g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.

33. The surrogacy process:
Costs (cont.)
Surrogacy Act 2010 (Qld)
Section 11 meaning of birth mother’s surrogacy costs
Examples of other reasonable costs for paragraph (g):
* travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth
* travel and accommodation costs associated with a birth mother's attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court
(3) In this section:
legal cost includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage.
medical cost means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.

34. The surrogacy process: Requirements to obtain a Parentage Order
Surrogacy Act 2010 (Qld)
Timing of application – application may not be made less than 28 days after the child is born and no more than 6 months after the child’s birth – Section 21(1), provision for leave in certain circumstances
Child must have resided with the intended parents for at least 28 consecutive days, and be residing with them at time of application – Section 22(2)(b)
If 2 intended parents – application must be made jointly, unless they are no longer a couple or one has died – Section 21(4) & (5)
If 1 intended parent with no spouse when SA made, that IP may apply (can be de facto spouse)

35. The surrogacy process: Requirements to obtain a Parentage Order
Surrogacy Act 2010 (Qld)
Counselling requirements
The Act provides that the court may only make a parentage order if it is satisfied that certain counselling has taken place
  1. The birth mother, her partner (if any) and the applicant/ joint applicants (intended parent(s)) obtaining counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications before the surrogacy arrangement is entered into;
and
2. The preparation of a surrogacy guidance report from an independent and appropriately qualified counsellor stating a number of relevant matters including whether the making of a parentage order would be for the wellbeing, and in the best interests, of the child.

36. The surrogacy process: Requirements to obtain a Parentage Order
Surrogacy Act 2010 (Qld)
Can attend upon the same counsellor for item 1, or separate counsellors
Same counsellor cannot be used for items 1 and 2
Appropriately qualified counsellor is defined in Section 19
For item 2, an appropriately qualified counsellor is 
1. A member of the Australian and New Zealand Infertility Counsellors Association;
2. A psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists;
3. A psychologist who is a member of the Australian Psychological Society; or
  4. A social worker who is a member of the Australian Association of Social Workers;
and has the experience, skills or knowledge appropriate to prepare the report.

37. The surrogacy process:
Other requirements to obtain a Parentage Order (cont.)
Surrogacy Act 2010 (Qld)
Consent of all parties to making of parentage order required at time of hearing
Section 24: despite any other provision of this Act, the court may make a parentage order about the child in favour of an applicant, or joint applicants, only if it also makes a parentage order about each living birth sibling of the child in favour of the applicant, or joint applicants.
Other requirements:
the proposed order will be for the wellbeing, and in the best interests, of the child – Section 22(2)(a)
Surrogacy Guidance Report under Section 32 must support the making of the order

38. The surrogacy process:
Other requirements to obtain a Parentage Order (cont.)
Surrogacy Act 2010 (Qld)
Section 23: dispensing with a requirement
Court may not dispense with these requirements:
the proposed order will be for the wellbeing, and in the best interests, of the child
the Surrogacy Arrangement was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants
the Surrogacy Arrangement was made before the child was conceived
the Surrogacy Arrangement is not a commercial surrogacy arrangement

39. The surrogacy process:
Other requirements to obtain a Parentage Order (cont.)
Surrogacy Act 2010 (Qld)
Section 23: dispensing with a requirement
Court may dispense with other requirements only if the court is satisfied that:
there are exceptional circumstances for giving the dispensation, and
The dispensation will be for the wellbeing, and in the best interests, of the child
To dispense with the requirement for a person’s consent, the exceptional circumstances for giving the dispensation must be either that:
(a) the person has died or is not a person with capacity to give the consent; or
(b) an applicant cannot locate the person after making all reasonable enquiries.

40. The surrogacy process:
Documents to be filed
Surrogacy Act 2010 (Qld)
Section 25: information & documents to be provided to Court
1. A copy of the child’s birth certificate;
2. A copy of the surrogacy arrangement;
3. An affidavit sworn by the Applicant, or joint Applicants;
4. An affidavit sworn by the birth mother;
5. An affidavit sworn by the birth mother’s spouse (if any);
6. An affidavit sworn by another birth parent (if any);

41. The surrogacy process:
Documents to be filed
Surrogacy Act 2010 (Qld)
Section 25: information & documents to be provided to Court
7. An affidavit by each lawyer who provided independent legal advice to the Applicant/joint Applicants, the birth mother and/or the birth Mother’s spouse before the surrogacy arrangement was made;
8. An affidavit signed by the appropriately qualified counsellor who gave counselling to the birth mother, her spouse (if any) and the applicant/s, before the surrogacy arrangement was made (this can be the same person, or may be a number of people if the parties did not attend upon the same person);
9. An affidavit:
a. sworn by the independent and appropriately qualified counsellor who interviewed the birth mother, her spouse (if any), another birth parent (if any) and the applicant/joint applicants, for the purpose of the application; and
b. Verifying a surrogacy guidance report prepared by the counsellor.
10. For each applicant who is a woman, an Affidavit from an appropriately qualified medical practitioner verifying a report prepared by the practitioner as to why the applicant is an eligible woman.

42. The surrogacy process: Matters to be covered in Affidavits
Surrogacy Act 2010 (Qld)
Section 26 details the matters to be covered in the applicant’s or joint applicants’ affidavits
Section 27 details the matters to be covered in the birth mother’s affidavit
Section 28 details the matters to be covered in the birth mother’s spouse’s affidavit
Section 29 details the matters to be covered in the other birth parent’s affidavit
Section 30 details the matters to be covered in the lawyer’s affidavit
Section 31 details the matters to be covered in the initial counsellor’s affidavit
Section 32 details the matters to be covered in the Surrogacy Guidance Report

43. The surrogacy process: Effect of Parentage Order
Surrogacy Act 2010 (Qld)
Section 39 - On the making of a Parentage Order,
the child becomes a child of the intended parent(s) and they become the child’s parent(s); and
The child stops being a child of a birth parent and they stop being a parent of the child
Treated as parents for the purposes of the FLA
Intended parents responsible for the custody and guardianship of any child born as a result of the pregnancy
Births, Deaths and Marriages Registration Act 2003 (Qld) makes provision for the applicant(s)/intended parent(s) to be recorded as the child’s parents on the child’s birth certificate following the making of a parentage order

44. The surrogacy process:
The child’s name
Surrogacy Act 2010 (Qld)
Births, Deaths and Marriages Registration Act 2003 (Qld) makes provision for the applicant(s)/intended parent(s) to be recorded as the child’s parents on the child’s birth certificate following the making of a parentage order
Should seek specific orders so this is as seamless as possible
Section 35: the child’s names are the names that the court approves for the child in the parentage order once it is made – must have regard to the child’s wellbeing & best interests & not approve a prohibited name
Nothing in the Act prevents a name of the child born as a result of a surrogacy arrangement being changed later under a law of the State or Commonwealth

45. The surrogacy process:
Registration of birth
Surrogacy Act 2010 (Qld)
Section 18: The birth parents to a child born as a result of a surrogacy arrangement are still required to register the birth of the child

46. Surrogacy: Other provisions
Surrogacy Act 2010 (Qld) – Chapter 3
Part 3: effects of parenting order
Part 4: discharge of parenting order
Part 5: appeals
Part 6: privacy

47. Surrogacy: Other offences
Surrogacy Act 2010 (Qld) – Chapter 4, Part 1
Section 55: advertisements and other published matters
(1) A person must not publish an advertisement, statement, notice or other material that:
(a) is intended or likely to induce a person to agree to act as a birth mother; or
(b) seeks or purports to seek a person willing to act as a birth mother; or
(c) states or implies that a person is willing to agree to act as a birth mother; or
(d) states or implies that a person is willing to enter into a surrogacy arrangement.
Maximum penalty: 100 penalty units or 3 years imprisonment.
(2) In this section:
publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.
Photo courtesy of clipartheaven.com

48. Surrogacy: Other offences
Surrogacy Act 2010 (Qld) – Chapter 4, Part 1
Section 57: Giving or receiving consideration
(1) A person must not give a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother's surrogacy costs) for another person:
(a) agreeing to enter into or entering into a surrogacy arrangement; or
(b) giving the intended parent, or intended parents, under a surrogacy arrangement the permanent custody and guardianship of a child born as a result of the surrogacy arrangement; or
(c) consenting to the making of a parentage order for a child born as a result of a surrogacy arrangement.
Maximum penalty: 100 penalty units or 3 years imprisonment.
(2) A person must not receive a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother's surrogacy costs) for the person or another person:
(b) giving the intended parent, or intended parents, under a surrogacy arrangement the permanent custody and guardianship of a child born as a result of the surrogacy arrangement; or

49. Surrogacy: Other offences
Surrogacy Act 2010 (Qld) – Chapter 4, Part 1
Section 57: Giving or receiving consideration
(1) A person must not intentionally provide a technical, professional or medical service to another person if:
(a) the person knows the other person is, or intends to be, party to a commercial surrogacy arrangement; and
(b) the person provides the service with the intention of assisting the other person to become pregnant for the purpose of the arrangement.
Maximum penalty:100 penalty units or 3 years imprisonment.
(2) A person does not commit an offence under subsection (1) if the person provides a technical, professional or medical service to a woman after she has become pregnant.

50. The surrogacy process:
Child support
The Child Support (Assessment) Act 1989 (Cth) (CS Act) allows a parent or non- parent carer of a child to apply for an administrative assessment of child support to be paid by a parent for a child (the “liable parent”)
“Parent” is defined by Section 5 of the CS Act as including:
An adoptive parent of a child;
A parent of a child born by means of artificial conception, in accordance with the Family Law Act (as described above); and
A parent of a child born because of a surrogacy arrangement, in accordance with the Family Law Act (as described above).
 Once a parentage order is made in respect of the child born as a result of the surrogacy arrangement, the birth parents will both cease being a liable parent for the purposes of child support.
In that case, the intended parents will then become parents for the purposes of child support, and may apply and/or be liable for child support payments
Until the making of a parentage order however, the birth parents may be liable parents for the purposes of child support

51. Parenting orders from birth
Family Law Act 1975 (Cth)
Plain old parenting orders, no magic to them
Bespoke process combining the best of both pieces of legislation – surrogacy & family law
Consent Orders

52. Child’s status before birth
Talbot & Norman (2012) FLC
Court considered whether it had jurisdiction to deal with an urgent application by the Father restraining the Mother from terminating the pregnancy
Father’s application was dismissed
Found that a foetus cannot be a child unless it is born alive
Court has no jurisdiction over a child until it is born

53. Parenting orders from birth
Family Law Act 1975 (Cth)
Section 64C: parenting order in relation to a child may be made in favour of a parent of the child or some other person
Section 65C: a parenting order in relation to a child may be applied for by:
(a) Either or both of the child’s parents; or
(b) The child; or
(c) A Grandparent of the child; or
(d) Any other concerned with the care, welfare or development of the child

54. Parenting orders from birth
Family Law Act 1975 (Cth)
Section 65G
    (1)  This section applies if:
                     (a)  a court proposes to make a parenting order that deals with whom a child is to live with; and
                     (b)  under the order, the child would not live with a parent, grandparent or other relative of the child; and
                     (c)  the court proposes to make that order with the consent of all the parties to the proceedings.
   

55. Parenting orders from birth
Family Law Act 1975 (Cth)
Section 65G
   (1A)  This section also applies if:
                     (a)  a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and
                     (b)  under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and
                     (c)  the court proposes to make that order with the consent of all the parties to the proceedings.
          

56. Parenting orders from birth
Family Law Act 1975 (Cth)
Section 65G
             (2)  The court must not make the proposed order unless:
                     (a)  the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or
                     (b)  the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.
The best interests of the child remain the Court’s paramount consideration – Section 60CA

57. Parenting orders from birth
Family Law Act 1975 (Cth)
Held in Rice v Miller (1993) FLC that while parenthood is to be regarded as important and significant, it does not establish a presumption in favour of natural parents

58. Parenting orders from birth
Family Law Act 1975 (Cth)
Must file initiating application to obtain consent orders in favour of a non-parent – Rule 10.15(4) Family Law Rules
Involvement of a family report writer? Section 62G
Before birth
After birth
Matters to address in report(s)
Timing of application?
Birth Plan?
Parenting Plan?
Relevance of surrogacy legislation

59. Parenting orders from birth
Family Law Act 1975 (Cth)
Independent representation of parties – not required, but recommended
Dealing with parties who are minors – litigation / case guardians
Documents to be filed:
Initiating Application,
Affidavit of both non-parents,
Affidavit of Birth Mother,
Affidavit of Birth Father,
Signed Minutes of Consent
Cover letter seeking for orders to be made in Chambers

60. Surrogacy or post-conception arrangements
What if things go wrong?
Surrogacy or post-conception arrangements
Surrogacy Act 2010 (Qld)
Health related issues and costs
If the parties do not adhere to the terms of any surrogacy arrangement or Birth Plan, such as birth mother refusing to attend obstetric and/or midwife appointments
The child is born with a severe handicap or physical abnormality and the intended parents both refuse to go through with the arrangement, leaving the Birth Parents both parents of a child with high needs
Either couple may separate prior to or after the child’s birth, and/or one of them may change their mind and do not give consent to the Parentage Order or Parenting Order (as the case may be), or the child being given to the intended parents – impact on surrogacy
Multiple births result from the pregnancy
The parties do not agree on various decisions to be made regarding treatment, the pregnancy, the birth or handover of the child
Birth mother may not be reimbursed for any agreed costs expended on the pregnancy, the birth and/or her post-birth support, or other legal costs, as per the terms of the Arrangement or Birth Plan (as the case may be), meaning they would likely have to consider suing the intended parents for such costs

61. Surrogacy or post-conception arrangements (cont.)
What if things go wrong?
Surrogacy or post-conception arrangements (cont.)
Failure to make application
If, for any reason, the intended parents do not wish to obtain a parentage order, then birth parents would have no recourse at law to make them do so
Birth mother can however seek to enforce the obligations under the surrogacy arrangement for the intended parents to pay or reimburse her costs, as this part of the agreement is enforceable (unless it is the Birth Mother who resiles from the agreement)

62. Surrogacy or post-conception arrangements (cont.)
What if things go wrong?
Surrogacy or post-conception arrangements (cont.)
No one wants the child
If, for any reason, neither the intended parents or birth parents wish to parent the child
Need to consider alternatives – family arrangement, adoption or foster care
Emotional impact of arrangements
Need to consider the emotional impact of various outcomes

63. Other roads less travelled to parenthood
Adoption Act 2009 (Qld)
International surrogacy – issues, applying for parenting orders
Informal arrangements – risks

64. The initial consultation: what clients need to consider
Relevant legislation
Many steps in both processes are not binding or enforceable
Process
Issues to consider for drafting Surrogacy Arrangement or Birth Plan with Parenting Plan
Independent representation of other party(ies): required for surrogacy, not for parenting orders
Which counsellor / Family Report Writer, as appropriate

65. Issues for practitioners to consider
Which State or Commonwealth law applies?
Has the conception already taken place? If so, parenting orders are the only recourse for Queenslanders
For surrogacy
if acting for surrogate where intended parents live in another State, check the legislative requirements because every State and Territory is different!
Is there a medical or social need? Are they otherwise eligible for a parentage order?

66. Issues for practitioners to consider
Do you need to be admitted to give advice in certain jurisdictions? Such as South Australia
Has there been any compensation given to date, or intended to be given?
Is this an arrangement which is based on trust and respect?

67. The End