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.

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:

• becoming or trying to become pregnant;
• a pregnancy or birth; and
• the birth parent/s being a party to a surrogacy arrangement or proceedings in relation to a parentage order.⁴

Commercial surrogacy is illegal in Queensland. Where there is no commercial aspect, the arrangement is known as an altruistic surrogacy arrangement.

Enforcement of surrogacy arrangements

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.

Parentage orders

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 proposed order will be for the wellbeing, and is in the best interests of the child;
• the child has resided with the intended parent/s for at least 28 consecutive days before the day the application was made;
• the child is currently residing with the intended parent/s;
• the parties are eligible to enter into a surrogacy arrangement;
• the surrogacy arrangement was made after the parties obtained legal advice regarding the surrogacy arrangement and its implications;
• the surrogacy arrangement was made after the parties obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications;
• the surrogacy arrangement was in writing and made before the child was born;
• the birth parent/s consent to the surrogacy arrangement;
• the surrogacy arrangement is not a commercial surrogacy arrangement; and
• a surrogacy guidance report supports the making of the proposed order.⁷

The court may dispense with some of these requirements in exceptional circumstances.⁸

Who is eligible to be a birth mother?

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.

Who is eligible to be an intended parent or parents?

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:

• 1 man;
• 1 eligible woman;
• a man and an eligible woman;
• 2 men; or
• 2 eligible women.

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

Overseas commercial surrogacy arrangements

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.

What does this mean for me?

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.