Same sex family law


Surrogacy entails an agreement in which a woman, referred to as the surrogate, commits to carrying a child for the intended parents. There are two primary surrogacy types: gestational surrogacy and traditional surrogacy.

Gestational Surrogacy

In gestational surrogacy, pregnancy results from transferring an embryo created through IVF using the father’s or donor sperm and the genetic mother’s egg. Consequently, the surrogate is not genetically related to the child.

Traditional Surrogacy

Contrastingly, traditional surrogacy occurs when the surrogate becomes pregnant, either naturally or artificially, using the donor or father’s sperm and her own egg. In this scenario, the child is genetically linked to the surrogate, not the intended mother or mothers.

Commercial Surrogacy

A surrogacy arrangement is deemed “commercial surrogacy” if the surrogate receives monetary compensation, in addition to reasonable medical and related expenses.

Altruistic Surrogacy

On the other hand, when a surrogate carries a child for non-financial reasons, receiving only medical expenses related to the pregnancy, it is labelled as “altruistic surrogacy.”

Recent international news stories have highlighted Australian same-sex couples engaged in commercial surrogacy arrangements as intended parents.

Surrogacy Regulations in Australia: Navigating the Complex Landscape

Surrogacy, whether altruistic or commercial, is subject to a complex web of regulations across Australian States and Territories. Federal legislation oversees commercial surrogacy, deemed illegal within Australia. The intricate regulatory framework, where ART clinics fall under both Federal and State laws, poses challenges for fertility clinics and intended parents, especially those traversing different States.

Altruistic Surrogacy Across Australia

Altruistic surrogacy, though regulated nationwide, involves nuances. In New South Wales (NSW), for instance, a surrogate can only receive compensation for “reasonable costs” related to the pregnancy and birth. This includes medical expenses, lost earnings, legal, and counselling costs.

Commercial Surrogacy Legalities

Commercial surrogacy faces legal prohibition across all states and territories in Australia, except the Northern Territory, where no specific laws govern surrogacy arrangements currently. Section 8 of the Surrogacy Act 2010 (NSW) clearly outlaws commercial surrogacy in NSW, with penalties ranging from substantial fines to imprisonment.

Global Dynamics of Surrogacy

Statistics suggest that merely one in twenty surrogacy arrangements occur in Australia, primarily in altruistic settings. The majority involve foreign surrogates, especially from Southeast Asia and the United States, participating in commercial surrogacy arrangements. [ii]. Navigating this intricate legal landscape demands a thorough understanding of both federal and state-specific regulations, reflecting the ongoing evolution of surrogacy laws in Australia.

Navigating Altruistic Surrogacy: A Legal Overview

Embarking on an altruistic surrogacy journey involves adhering to specific requirements, which vary among states. Consulting with a local attorney is crucial to understanding the exact prerequisites in your state.

Legal Dynamics Until Parentage Order

Throughout the surrogacy process, the surrogate and her partner hold legal parentage until a court issues a transfer of parentage order to the intended parents. This legal structure poses a significant challenge in altruistic surrogacy arrangements. In situations where the surrogate alters her decision about transferring the baby to the intended parents, it can lead to potential court battles over parenting orders. Given the surrogate’s legal parental status, the court may permit her to retract from the initial agreement, as surrogacy agreements lack binding legal force.

The absence of legal enforceability underscores the importance of meticulous legal guidance and transparent communication among all parties involved in altruistic surrogacy arrangements

Combatting Discrimination Against Lesbians in Surrogacy

Until as recently as November 2016, discrimination against lesbians in their quest for surrogacy persisted in multiple Australian states.

In August 2016, the Sex Discrimination Act 1984 (Cth) revoked exemptions permitting doctors or fertility clinics to reject IVF for unmarried or lesbian women.

Shipping Your Genetic Material Abroad

Sending eggs, sperm, or embryos overseas involves navigating diverse requirements across Australian clinics and states. Beyond adhering to Australian laws and satisfying quarantine authorities, you must also align with the destination country’s regulations.

Given the illegality of commercial surrogacy in Australia, clinics often hesitate or refuse to export embryos if there’s a suspicion of their involvement in a commercial surrogacy arrangement.

Procuring Eggs, Sperm, or Embryos in Australia

In Australia, federal laws take precedence over state legislation, making it a criminal offense to compensate sperm, egg, or embryo donors beyond out-of-pocket expenses. This offense is punishable by up to 15 years of imprisonment, specifically for donor agreements made within Australia.

State laws vary, and some extend their jurisdiction to overseas arrangements. Therefore, seeking tailored legal advice is crucial when entering surrogacy or donor gamete agreements, whether within Australia or internationally.

Due to a persistent shortage of donors in the country, many Australians are compelled to explore overseas options for donor eggs, embryos, and sperm. Although the emergence of egg donor websites and apps has somewhat alleviated the shortage, it remains common for Australians to travel abroad to meet their reproductive genetic needs.

In Australia, all egg, embryo, and sperm donors must undergo counselling by a member of the Australian and New Zealand Infertility Counsellors Association (ANZICA).

When importing sperm, embryos, or eggs into Australia, counselling may also be a requirement. Moreover, the usage of donor sperm, eggs, and embryos might be contingent on the donor’s consent to reveal their identity when the child reaches 18 years old.

Overseas Surrogacy: Legal Considerations and International Procedures

Due to the intricate legal landscape surrounding surrogacy in Australia, many individuals opt for surrogacy arrangements in countries like the United States, Canada, Cyprus, Ukraine (for heterosexual couples), and Malaysia. Notably, engaging in commercial surrogacy is prohibited for foreigners in Mexico, India, Thailand, Cambodia, and Nepal.

Within Australia, commercial surrogacy is illegal in all states except the Northern Territory, where no legislation exists.

Residents of Queensland, New South Wales, or the Australian Capital Territory committing to overseas commercial surrogacy arrangements (involving fees to surrogates or agencies) face criminal charges, with penalties of up to three years in jail, depending on the state. Western Australia specifically considers the making of overseas surrogacy arrangements within the state as an offense[xiii].

For children born through overseas surrogacy, the legal process includes obtaining a passport for the child to bring them to Australia. Options include applying for Australian citizenship by descent or a permanent visa for the child, along with additional requirements such as DNA testing and evidence of the parent-child relationship. Records of medical procedures and surrogacy agreements are vital for such applications, underscoring the importance of consulting immigration and family lawyers well-versed in assisted conception law.

Given the prohibition on payments to surrogates and advertising, coupled with international expenses, commercial surrogacy is often impractical for most lesbians. While no criminal prosecutions have occurred in Australia for commercial surrogacy, individuals have been referred to the Director of Public Prosecutions (DPP).

Given the complex and evolving nature of surrogacy laws, along with potential legal consequences, seeking advice from a lawyer experienced in both altruistic and commercial surrogacy law is imperative. Careful planning and consultation with a surrogacy lawyer specialist are crucial for anyone considering or already undergoing international surrogacy arrangements.

Challenges Confronting Prospective Same Sex Surrogacy Parents

In the Australian legal landscape, the woman giving birth is recognized as the legal parent, establishing her as the mother, regardless of biological ties. In cases where a surrogate carries a child for another couple, the birth mother holds legal parenthood. If the birth mother decides to retain custody, she maintains legal parental rights.

For the genetic mother seeking legal parentage and the termination of the surrogate mother’s rights, a complex legal process ensues. This involves obtaining parenting orders through the Federal Circuit and Family Court or pursuing adoption via the Supreme Court, which requires the surrogate mother’s consent.

In contemporary scenarios, securing parenting orders for intended parents in commercial surrogacy arrangements proves challenging. Altruistic surrogacy cases demand a stringent application process with strict criteria, necessitating filings in the Supreme Court. This legal course effectively shifts legal parentage from the surrogate and her partner, if applicable, to the intended parents. Upon the issuance of final parenting orders, an updated birth certificate reflects the intended parents as the child’s legal guardians.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.