Surrogacy Arrangements in NSW

Posted on February 25th, 2013

Share on LinkedInTweet about this on TwitterEmail this to someoneShare on Google+Print this page

by David Gawthorne

David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law

A surrogacy arrangement is an arrangement under which a woman agrees to become pregnant and for parentage of the child born as a result to be transferred to the intended parent or parents. In NSW, since 2011, it has been possible to apply to the Supreme Court to formalise certain surrogacy arrangements by the making of a parentage order under the Surrogacy Act. By the order, the child becomes a child of the intended parents named in the order and the child stops being a child of the birth parent. The child of such surrogacy arrangements has the same rights in relation to the intended parents as a child born to them, and the intended parents have the same parental responsibility as the birth parent had before the order was made.

An application for a parentage order may be made in relation to a surrogacy arrangement whether it was entered into before or after the commencement of the Surrogacy Act. A surrogacy arrangement entered into before the commencement of the Act is a “pre-commencement surrogacy arrangement”. Whilst some exceptions apply to pre-commencement surrogacy arrangements, certain pre-conditions must otherwise be met for a parentage order to be granted by the Court. The surrogacy arrangement must not be a commercial arrangement. A surrogacy agreement must be entered into before conception, in writing, and signed by all affected persons. If there are two intended parents of the child then they must be a couple.

The birth mother must be at least 25 years old at the time of entering into the surrogacy agreement. The intended parents must be at least 18 years old at the time of entering into the surrogacy agreement and, if under the age of 25, they must be of sufficient maturity to understand the social and psychological implications of the making of the parentage order. There must be a medical or social need for the surrogacy arrangement, such as where an intended mother is unable to carry a pregnancy to full term, or to give birth.

The person applying for a parentage order must be resident in NSW at the time of the application. The child must also be living with them at that time. The intended parents, the birth mother and any partner of the birth mother must consent to the making of the parentage order, unless the birth parent has died, lost capacity to consent or cannot be located after reasonable endeavours to find them.  Each of the affected persons must have received counselling from a qualified counsellor about the surrogacy arrangement. Further, the birth mother, and any partner of hers, must have received further counselling after the birth and before consenting to the parentage order. Each of the affected persons must have received independent legal advice about the surrogacy arrangement and its implications before entering into the surrogacy arrangement.

Of course, the making of the parentage order must be in the best interests of the child. The child must be under the age of 18 when a parentage order is sought. If the child is of sufficient maturity, and it is otherwise appropriate, then the child’s wishes must be taken into account. Certain information about the surrogacy arrangement must have been provided to the Dept. of Health for entry in a central register. The child’s birth must also have been registered with the NSW Registry of Births, Deaths and Marriages or similar interstate agency.

David Gawthorne is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact David Gawthorne to arrange a consultation or contact our Newcastle office.

Share on LinkedInTweet about this on TwitterEmail this to someoneShare on Google+Print this page