On 16 February 2010, the Queensland Parliament assented to the Surrogacy Act 2010. This marks the end of provisions in the previous Surrogate Parenthood Act 1988, which prohibited both commercial and altruistic surrogacy, and made both forms of surrogacy a criminal offence. It also paves the way for parties to surrogacy arrangements, including those carried out before the new Act, to deal with the sometimes complex parenting issues coming from these arrangements.

What is a surrogacy arrangement?

According to the Act, a surrogacy arrangement is an arrangement between a woman and her spouse (if any) and another person or people, where a birth mother agrees to become, or try to become, pregnant with the intention that any child born will be treated as the other person or people’s child. The agreement must be made before the child is conceived, be in writing, and be signed by the birth parent/s and the intended parent/s.

A birth mother cannot receive a payment or benefit for entering into a surrogacy arrangement, although the intended parent/s can agree to pay any reasonable costs associated with the pregnancy and birth.

Who is eligible to be a birth mother?

The birth mother and her spouse (if any) must be at least 25 years old when the surrogacy arrangement is made. They must have obtained counselling and legal advice about the surrogacy arrangement and its implications.

Who is eligible to be an intended parent or parents?

An intended parent/s must be at least 25 years old. They must obtain counselling and legal advice, and be a resident of Queensland. Further, they must have a social or medical need for the surrogacy arrangement, which can include:

• one man;
• one eligible woman;
• a man and an eligible woman;
• two men; or
• two eligible women.

An eligible woman is a woman who is unable to conceive, is likely to suffer serious medical conditions or possibly death (or the baby is likely to) if she conceived.

Parenting orders that can be made after surrogacy arrangements

The new Act not only decriminalises surrogacy in Queensland but also provides a mechanism for the birth mother (and her spouse) to transfer legal parentage of the child to the intended parent or parents.

A parenting order for the transfer of parentage may be made no less than 28 days and not more than six months after the child’s birth, or at the Court’s discretion outside of those times. In determining whether to make a parenting order, the Children’s Court will consider whether:

• the birth parent or parents consent to the application;
• the parties are eligible to enter into a surrogacy arrangement;
• the proposed order is in the best interest of the child;
• the child has resided with the intended parent or parents for at least 28 consecutive days before the application was made;
• the child is currently residing with the intended parent or parents;
• it is not a commercial surrogacy arrangement; and
• a surrogacy guidance report supports making the proposed order.

Once a parentage order has been made, the child legally becomes the child of the intended parent or parents and stops being the child of the birth parent or parents.

Can the birth mother change her mind?

Before the Court makes a parenting order, a birth mother or her spouse can decide that they no longer want to participate in the surrogacy arrangement.

What about surrogacy arrangements entered into before the new law?

The new legislation provides a mechanism to transfer legal parentage of a child born as a result of surrogacy arrangements entered into before the new laws were passed. Within two years after the legislation is enacted, an application can be made to the Court for a parenting order, provided that:

• the surrogacy arrangement was entered into before this law came into force;
• the surrogacy arrangement was entered into before the child was born, and
• it was not a commercial surrogacy arrangement.

If you are considering entering into a surrogacy arrangement or applying for a parenting order, or you need legal advice about the implications of surrogacy arrangements, please contact HopgoodGanim’s Family Law practice.

Paul Hopgood, Partner
Alison Ross, Accredited Family Law Specialist
Helen Davison, Trainee Solicitor