Surrogacy, IVF and Parentage

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Using surrogacy and IVF to have a child gives rise to many emotional and legal complexities with potentially serious consequences. It is important to understand the risks, rights and responsibilities of all parties before entering into a surrogacy arrangement or undergoing IVF treatment. Owen Hodge Lawyers can assist you in this area of the law and would be happy to guide you through the process.


IVF and surrogacy


In vitro fertilisation refers to the process of creating an embryo in a test tube and then implanting that embryo in the uterus of the woman hoping to become pregnant.


Generally, people going through IVF are doing so to conceive their own child.  However, a small number of people are carrying out what is called gestational surrogacy.  Gestational surrogacy refers to the practice whereby an embryo is implanted in a woman who intends to transfer the parentage of the resulting child to another person through a surrogacy arrangement.


In this case, sometimes the egg of the intended mother, not the birth mother, is used so that the birth mother is not biologically related to the child she gives birth to.  In NSW, a child is considered to be the legal child of the birth mother, even if the birth mother’s egg was not used. This can create some serious legal consequences if the birth mother decides that she wants to be the parent of the child following its birth rather than the intended parent. The outcome in such a case will depend on the specific circumstances of each matter. Because each case is unique and surrogacy through IVF can be less straight forward then it seems, you should always obtain legal advice before following this path.


What is surrogacy?


The law in NSW recognises two board types of surrogacy; pre-conception surrogacy and post-conception surrogacy.


Pre-conception surrogacy is generally an arrangement where a woman agrees to:


  • try to become pregnant; and
  • transfer the parentage of the child to another person or persons once the child is born.


Post-conception surrogacy is generally an arrangement where a woman agrees to transfer the parentage of a child that she is pregnant with to another person or persons.  The law states that generally the court will only transfer the parentage of a child born as a result of a pre-conception surrogacy.


Why choose surrogacy?


People choose surrogacy for many reasons including because they:


  • have a medical condition that makes it unlikely that they will conceive or carry a baby to full term;
  • have not had success with IVF;
  • are considered to be infertile; or
  • they are single or in a same sex relationship.


Surrogacy and the law


In NSW, parties can enter into a surrogacy arrangement. A surrogacy agreement must be in writing, and signed freely and voluntarily by all parties.  Once the child is born, the intended parents have a certain amount of time during which they can apply to the court to have the parentage of the child transferred to them.


There are a number of criteria that the court will consider before making a parentage order. Some of these include that:


  • the surrogacy must not be a commercial arrangement;
  • the surrogacy must be a pre-conception surrogacy arrangement;
  • the birth mother must be at least 25 years old;
  • the intended parents must be at least 18 years old; and
  • all parties have obtained counselling and legal advice.


The law also requires that certain details of the surrogacy arrangement are recorded on the central register kept in accordance with the Assisted Reproductive Technology Act 2007.


It is important to also note that the law will not force a birth mother to transfer the parentage of the child born as a result of a surrogacy arrangement even if there is a written agreement in place.


Unregulated and illegal surrogacy


As the surrogacy laws in Australia vary by state, some people are using loopholes in the law to broker international surrogacy arrangements.  Chief Judge of the Federal Circuit Court John Pascoe has called international surrogacy the new frontline in human trafficking.  Owen Hodge Lawyers do not deal with international surrogacy.


It is a criminal offence in NSW to enter into a commercial surrogacy arrangement.  Broadly, a surrogacy arrangement will be considered to be commercial if it involves giving money or some other type of advantage to the surrogate mother or another person.  Reimbursing a birth mother’s surrogacy costs does not constitute a commercial surrogacy arrangement.


We can help


If you are considering surrogacy, then please contact Owen Hodge Lawyers. We can help you step by step along the way by drafting the surrogacy agreement for you, helping to enter the necessary details on the central register and applying for a parentage order.  The law requires you to obtain legal advice before applying for a parentage order and we would be honoured to help you through this sensitive time. Give us a call on 1800 770 780 or contact us via [email protected]  to schedule a consultation and learn more.

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