Gestational Carriers & Surrogacy in Qld: What the Law Says
The birth of a child is a momentous occasion in any family, but not all parents can conceive a child through traditional means. For some families, surrogacy and gestational carriers offer the opportunity to become parents. Firstly, it’s important to understand the difference between surrogacy and gestational carriers. Traditionally surrogacy involves a woman carrying a child that is biologically related to her on behalf of another person or couple. This differs from gestational carriers as they will carry a child that is not biologically related to them at all.
Surrogacy and gestational carriers are complex legal matters, and it is important to understand the legal framework in Queensland to ensure that the process is followed correctly. In this blog post, we will explore the legalities of surrogacy and gestational carriers in Qld.
What Does the Law Say About Surrogacy in Qld?
Surrogacy in Queensland is regulated by the Surrogacy Act 2010 (Qld). Under this Act, surrogacy agreements are not legally binding, and it is an offence to enter into a surrogacy arrangement that involves payment or reward (commercial surrogacy). The only exception is reimbursement for reasonable surrogacy costs, such as medical expenses or travel expenses. It is also an offence to advertise for a surrogate, for someone to publish anything that indicates they are willing to be a surrogate, or to act as a surrogate for payment or reward. More information about the surrogacy laws in the rest of Australia can be found here.
Qualifying for Surrogacy in Queensland
While altruistic surrogacy is legal in Queensland, there are strict criteria that must be met to ensure that the surrogacy arrangement is legal and ethical. To qualify for surrogacy in Queensland, the intended parents must have a social or medical need for surrogacy. This includes singles and couples who cannot conceive or carry a baby themselves. Additionally, the birth mother must be over 25 years of age, and each of the intended parents must be at least 25 years of age. The surrogacy arrangement must be altruistic (not paid), and the intended parents must legally cover the birth mother’s out-of-pocket expenses.
Counselling and Legal Advice
In addition to meeting the criteria for surrogacy, the parties involved must undergo surrogacy counselling about the arrangement with a qualified counsellor. This is to ensure that all parties understand the emotional and psychological implications of surrogacy. Additionally, the parties must obtain legal advice about the arrangement from a qualified lawyer. This is to ensure that all parties understand their legal rights and responsibilities.
Surrogacy can be an emotionally complex process, for both the intended parents and the birth mother. It's important to consider the emotional implications of surrogacy before embarking on this journey. For the intended parents, surrogacy may offer the chance to fulfil their dream of having a child, but it can also bring about feelings of loss, disappointment, and anxiety. For the birth parent, the decision to carry a child for someone else can be a deeply personal and emotional one. It's important for them to have a support system in place, and to feel comfortable and safe throughout the entire surrogacy process. It's also crucial for all parties involved to have open and honest communication throughout the journey, to ensure that everyone's emotional needs are being met.
Another important aspect of surrogacy in Queensland is the requirement for a written Surrogacy Agreement that is signed by all parties involved. The agreement should cover issues such as the surrogate’s role and responsibilities during the pregnancy, arrangements for the birth of the child, and the intended parents’ responsibilities for the child after birth. You will need a surrogacy arrangement in place so that a court order can be made to transfer the parentage of the baby.
It is important to note that the birth mother has the right to bodily autonomy and can manage her pregnancy - just as any other pregnant woman does - despite what might be in the surrogacy arrangement. We always suggest you seek legal advice before entering into any surrogacy agreement to ensure that the agreement complies with Queensland law and to understand any legal implications of the agreement.
While the Surrogacy Act provides for legal and legitimate surrogacy arrangements, it's important to note that they are not generally enforceable in Queensland. This means that neither the birth mother nor the intended parents are legally bound to the terms of a surrogacy agreement, except in some limited circumstances.
The surrogacy process is entirely based on the voluntary consent of both parties, and this consent must be maintained throughout the entire process. For example, if a child is born and the birth mother decides against transferring parentage to the intended parents, she is not obligated to do so, regardless of whether a surrogacy agreement is in place. In this instance, the arranged parents’ only recourse is to apply to the Federal Circuit Court or Family Court for a Parenting Order.
At birth, the birth parent must register the baby’s birth with the Registry of Births, Deaths and Marriages. Once 28 days has passed since the birth of the child, the intended parents must apply for a Parentage Order in the Children's Court of Queensland. A Parentage Order transfers parentage from the birth mother to the intended parents, making them the legal parents of the child. It is important to note that the intended parents must apply for a Parentage Order within six months of the child's birth. They also must have lived with the intended parents for at least 28 consecutive days, and the intended parents must be Qld residents.
Requirements for Parentage Order
The Surrogacy Act outlines that there must have been a medical or social need for surrogacy. The intended parent(s) must have been:
• unable to fall pregnant, stay pregnant or be able to give birth
• likely to affect the child with a genetic condition or disorder, or put the child’s health or life at risk
• unlikely to survive pregnancy or birth or have their health significantly affected.
The birth parent(s) and intended parent(s) must have:
• received legal advice separately before the surrogacy arrangement was made
• received counselling with regards to the surrogacy with a qualified counsellor before the arrangement was made
• made the surrogacy arrangement before the child was conceived
• agreed to the surrogacy arrangement
• signed the surrogacy arrangement
• been 25 years old or older when the surrogacy arrangement was made
• been in agreeance to the making of the parentage order.
Considering Surrogacy in Qld and Need Legal Support?
Surrogacy is a complex and emotionally charged process, but it can be a fulfilling way to start or expand a family. If you are considering surrogacy in Queensland, it is important to understand the legal requirements and procedures. The criteria for surrogacy in Queensland include a social or medical need for surrogacy, altruistic arrangements, and obtaining legal and counselling advice. If you need assistance with a surrogacy arrangement or Parentage Order, contact Pullos Lawyers today. Our experienced family lawyers can help guide you through the process.