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Family Lawyer North Lakes Blog

Preston and Associates: Family and Criminal Law

At Preston and Associates we have seen an increase in clients accessing our legal service for advice and representation in relation to surrogacy matters. The increase in such matters has prompted us to write this blog on our current experiences.

This family law blog is by no means intended to provide legal advice, it is simply recent observations and commentary on a developing area of the law. If you are considering a surrogacy arrangement we would encourage you to arrange a time to meet with one of our experienced lawyers to obtain independent legal advice specific to your matter.

The Surrogacy Act 2010 (Queensland) (‘the Act’) came into operation on 1 June 2010. This Act regulates Surrogacy Agreements in Queensland and permits surrogacy arrangements provided they are not for a commercial purpose.

The legislation provides that the surrogacy arrangement is an arrangement between a woman (the birth mother) and another person or persons (intended parents) whereby the birth mother agrees to become pregnant, with the intention that the child born is to be treated as the child of the intended parents. This means that it is the intention of the parties that the birth mother will relinquish to the intended parent/s custody and guardianship of the child after the child is born, and the intended parents agree to become permanently responsible for the custody and guardianship of the child.

It is important to ensure when embarking on a process of surrogacy, that careful consideration is given to the timeframes and requirements which are imposed on parties by way of the surrogacy legislation. It is also crucial to ensure that the surrogacy arrangement is not of a commercial nature as this would render the agreement illegal, and criminal consequences may apply.

A commercial surrogacy arrangement occurs if the birth mother receives any payment, reward or other material benefit or advantage as a result of the surrogacy arrangement. However, if the intended parents pay for the birth mother’s reasonable medical, legal and counselling expenses arising from the surrogacy arrangement, then these payments do not render the arrangement commercial in nature.

The significance of the Surrogacy Act 2010 (Queensland) came about due to the need for the Government to create a framework for individuals embarking on surrogacy arrangements and further to address issues which arise from a particular section in the Family Law Act 1975.

Section 60H of the Family Law Act 1975 creates a particular legal challenge for intended parents, in that it provides as follows:

‘That if a child is born to a woman as a result of the carrying out of an artificial inception procedure while the woman was married to, or defacto partner of, another person (the other intended parent) and either the woman and the other intended parent consented to the carrying out of the procedure and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure, or under a prescribed law of the Commonwealth Law of a State or Territory, the child is a child of the woman and the other intended parent and whether or not the child is biologically the child of the woman and of the intended parent for the purposes of the Family Law Act, the child is the child of the woman and the other intended parent, and if a person other than the woman and the other intended parent provided genetic material, the child is not the child of that person’.

What this section in effect does, is render, for all legal purposes under the Family Law Act 1975, the birth mother and the birth mother’s partner, as the legal parents and guardians of the child born to the birth mother, irrespective of whether the child is the genetic material of the birth mother or intended parents.

In recent times, Preston and Associates have come across a number of matters in which parties have elected to embark on informal artificial insemination processes. In doing so, some parties have not put their minds to, or had advice about, the implications of Section 60H of the Family Law Act 1975 or considered the necessary steps to be taken under the surrogacy legislation Qld to overcome section 60H.

Under the Surrogacy Act 2010 (Queensland) in order for a parentage Order to be made, meaning an Order which transfers guardianship or custody from the birth parents to the intended parents, the following must have been attended to:

1. The Court may make a parentage Order only if it is satisfied with all of the following matters:

a. The proposed Order will be for the wellbeing and in the best interests of the child;

b. The child has resided with the Applicant or joint Applicants at least 28 consecutive days before the Application was made and was residing with the Applicant or joint Applicants when the Application was made and is residing with the Applicant or joint Applicants at the time of the hearing;

c. The Applicant or joint Applicants were entitled to apply under Section 21;

d. There is evidence of a medical or social need for the surrogacy arrangement;

e. The surrogacy arrangement was made after the birth mother and the birth mother’s spouse, if jointly or separately, and the Applicant or joint Applicants, jointly or separately, was made after each of the birth mother, birth mother’s spouse and the Applicants obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications and was made with the consent of the birth mother, birth mother’s spouse and, if any, the Applicant or joint Applicants, and was made before the child was conceived, and is in writing and signed by the birth mother, the birth mother’s spouse and the Applicant or joint Applicants and is not a commercial surrogacy arrangement;

The requirement to have the tasks attended to prior to conception is a crucial one. What can result in circumstances in which parties have not complied with the surrogacy legislation, is that the parties have to turn to the Family Law Act 1975 and proceed with an Application in that jurisdiction for parenting Orders that deal with parental responsibility and who the child will live with.

Such Orders are different to a parentage Order and, for the purposes of varying the Birth Certificate, are not the requisite Order required by Births, Deaths & Marriages for that variation.

This Blog accordingly acts as a caution to those who are considering embarking upon a surrogacy process. We recommend that at the very early stages of contemplating embarking on this process, that parties obtain thorough and independent legal advice so as to be fully informed as to what is required to successfully navigate the legislative framework.

It is also important to obtain legal advice on the limitations of the current surrogacy legislation and, in particular, the unenforceability of surrogacy arrangements and what that means for parties considering embarking on this process.

At Preston and Associates we have vast experience working with couples in surrogacy matters and we would encourage you to speak with one of our highly experienced Family Law Solicitors regarding such matters.

Disclaimer: This blog is produced by Preston and Associates: Family and Criminal Law. This blog is not intended to give legal advice. This blog provides general information only on topics related to family law and criminal law. At no time, should you rely upon such general information as legal advice. We encourage you to contact Preston and Associates to seek legal advice regarding the circumstances of your matter.

About us:
Preston and Associates is a law firm servicing North Lakes and North Brisbane. We specialise in family law, criminal law, domestic violence and surrogacy matters. We pride ourselves on our commitment to client care. We understand that navigating the legal system is stressful and overwhelming. Our experienced team walk alongside our clients to ensure they are fully informed of their rights and options, and are supported throughout the entire process. www.prestonandassociates.com.au