Surrogacy and the Surrogacy Act 2010 (Qld)
The Surrogacy Act 2010 (Qld) was established to provide for the courtsanctioned transfer of parentage of children born as a result of particular surrogacy arrangements and to prohibit commercial surrogacy arrangements.
A surrogacy arrangement is an arrangement between a woman (the birth mother) and another person or couple (the intended parents) where the birth mother agrees to become, or tries to become pregnant with a child for the intended parents. Under a surrogacy arrangement, after the child’s birth, the birth mother gives up the child permanently to the intended parents.1
A birth mother has the same rights to manage her pregnancy and birth as any other pregnant woman.2
A commercial surrogacy arrangement is where the birth mother receives a financial benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for being a surrogate mother.3
The birth mother’s surrogacy costs are the birth mother’s reasonable costs associated with the following:
Commercial surrogacy is illegal in Queensland. Where there is no commercial aspect, the arrangement is known as an altruistic surrogacy arrangement.
A surrogacy arrangement is not enforceable. However, an obligation under a surrogacy agreement to pay, or to reimburse the mother’s surrogacy costs, is enforceable. This is subject to exceptions, such as if a child is born as a result of the surrogacy arrangement, 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 in relation to the child, the birth mother does not consent to the making of the order.5
Effectively, either party being the birth mother or the intended parents can pull out of a surrogacy arrangement at any time.
An application for a parentage order in relation to a child can be made by the intended parents to the Children’s Court for the transfer of parentage. The application may be made no less than 28 days and not more than six months after the child’s birth or with the court’s leave.6
In order for the court to grant a parentage order, it needs to be satisfied of a number of matters including:
The court may dispense with some of these requirements in exceptional circumstances.8
The birth mother and the birth mother’s spouse (if any) must be at least 25 years of age when the surrogacy arrangement was made.
Similar to the eligibility of birth parent/s, the intended parent/s must be 25 years, but also be a resident of Queensland.10 Further, they must have a social or medical need for the surrogacy arrangement which is defined as being:
An eligible woman is a woman who is unable to conceive, or if conceived, the baby or the woman is likely to suffer serious medical conditions or death.11
Arranging surrogacy overseas in places like India, Russia and several states in the USA has received significant media attention in recent time. Paying for the services of a birth mother outside Australia is a commercial surrogacy arrangement.
Overseas commercial surrogacy arrangements are able to be made in several states in Australia. However, the Surrogacy Act 2010 (Qld) does not allow Queensland residents to do so.
The law in Queensland is generalised and does not necessarily provide adequate certainty for parties involved in altruistic surrogacy arrangements. Given that surrogacy is an area in its infancy in Australia, with limited case law to rely upon, it is difficult to predict how the courts might interpret and apply certain provisions of the Act.
1. Surrogacy Act 2010 (Qld) s7
2. Surrogacy Act 2010 (Qld) s16
3. Surrogacy Act 2010 (Qld) s10
4. Surrogacy Act 2010 (Qld) s11
5. Surrogacy Act 2010 (Qld) s15
6. Surrogacy Act 2010 (Qld) s21
7. Surrogacy Act 2010 (Qld) s22
8. Surrogacy Act 2010 (Qld) s22
9. Surrogacy Act 2010 (Qld) s22
10. Surrogacy Act 2010 (Qld) s22
11. Surrogacy Act 2010 (Qld) s14(2)
The contents of this paper are not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations. HopgoodGanim Lawyers cannot accept any liability or responsibility for loss occurring as a result of anyone acting or refraining from acting in reliance on any material contained in this paper.