Surrogacy. Who are a child’s parents?

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SurrogacyMany Australians, especially those involved in a same sex relationship, have considered starting or adding to their family through surrogacy. But the stories about disputes between birth mothers and intended parents, some of them with alarming and unfortunate consequences for the children, are enough to give anyone pause. Who are the parents of a child born through a surrogate arrangement?


Fortunately, in New South Wales, the Surrogacy Act (2010) sets out some guidelines for preventing and resolving disputes. Before getting into the details, however, it is very important to have three basic principles in mind:



What the Surrogacy Act provides


SurrogacyFor purposes of the Surrogacy Act, “surrogacy” is defined as a circumstance in which biological material from one or both of the intended parents of a child is implanted by an artificial conception process in the uterus of another woman who then becomes pregnant with, and gives birth to, a child.


The Act permits intended parents to apply to the NSW Supreme Court for a parentage order thirty days after the birth. If it is granted, they gain full parenting rights, and their name on the child’s birth certificate. However, the transfer of legal parentage will only be granted if certain stringent conditions are met. These requirements include:


  • the arrangements are in the best interests of the child;
  • the surrogacy arrangement is altruistic;
  • the intended parents are of a certain age and/or of demonstrated maturity (the birth mother must generally be at least 25);
  • the agreement is in writing;
  • there is medical or social need for the surrogacy;
  • the parties have received legal advice and counselling; and
  • everyone concerned, including the birth mother, consents to the parentage order being made.


The parentage order permits the intended parents to do anything that requires a birth certificate, such as applying for a passport on behalf of the child or enrolling the child in school.


Without a parentage order, the child’s inheritance rights can be compromised, as may his or her rights to workers compensation entitlements upon the death of an intended parent or access to parental support. On a less tangible level, it is reasonable to believe that ability to resolve the issue of parentage in a way that corresponds with social understanding protects children from having their world suddenly upended in unpredictable ways because of adult arguments about biology.


What about the birth mother?


SurrogacyIs she out of the picture? Because the touchstone of the law is the child’s best interest, a birth mother who has consented to the transfer of parentage may still apply to the Family Courts for an order that will allow her to spend time with the child as a person concerned with the child’s welfare, much as a grandparent or former step-parent might.


Of course, the situation may become infinitely more complicated where:


  • the birth mother initially consents, but then revokes consent;
  • the intended parents change their intention and decide not to raise the child;
  • the child is not genetically related to either intended parent or the birth mother or when a third party has contributed genetic material, as with mitochondrial DNA;
  • the child was not conceived through artificial means; or
  • the transfer of parentage does not appear to be in the child’s best interest.


This is when disputes arise. All parties involved will need the wisdom of Solomon and the advice of a solicitor at this difficult juncture.


The family lawyers at Owen Hodge Lawyers would be happy to help you with your questions about surrogacy and any disputes that may occur. The firm has experience in all aspects of family law including parenting arrangements, financial settlements and divorce. We look forward to meeting with you. Please contact us at 1 800 770 780 to schedule your consultation with one of our experienced family lawyers.

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