The purpose of an application for parentage order is to seek court orders to transfer parentage of the child from the surrogate (and surrogate’s partner) to the intended parents. Intended parents need to file their application for parentage order at court within the first month and the sixth month after your child is born. While this may seem like a long time, it is sure to fly by, especially with a newborn around. So, here are 3 things you can do right from the get go to make sure you don’t fall behind.

(1) Get Talking

Be sure to get in touch with your IVF clinic, solicitor and counsellor to tell them that your child is born and that you will be applying for a parentage order at Court. It’s also a good idea to confirm their availability over the following months so you can plan around their schedule.

(2) Get Counselling

You will need to complete 2 different types of counselling after the child is born:

• The birth mother (and birth mother’s partner) will need to attend relinquishment counselling after the child is born. You can use the same counsellor who provided you with counselling before you signed the surrogacy arrangement.
• All parties to the surrogacy arrangement (intended parents, birth mother and birth mother’s partner) need to attend independent counselling. This counsellor needs to be someone completely new from anyone that you have previously used in your surrogacy journey.

You should book your counselling sessions as soon as possible after the child is born.

(3) Get Registered

While the intended parents name the child, generally, it is the Birth Mother who registers the birth, so remind your birth mother to do this. You cannot apply for a parentage order if the birth was never registered in the first instance.

An application for parentage order may seem daunting but a little planning goes a long way! If you need assistance with your application for parentage order or have questions about the surrogacy process in general, please get in touch, our surrogacy lawyers would be more than happy to hear from you.

Surrogacy Enquiry

For more information on our surrogacy services and quotes on our professional fees, please contact us or visit our quoting page. One of our experienced surrogacy lawyers would be more than happy to get in touch to see how we can best assist you along your journey.

Who are the Affected Parties to a Surrogacy Arrangement

There are a few steps that you need to take before commencing surrogacy, one of which is determining the relevant persons to your surrogacy arrangement. The Surrogacy Act 2010, which is the governing legislation in the state of New South Wales, defines these persons as an “affected party” and includes:

• The birth mother;
• The birth mother’s partner (if any);
• Another birth parent (if any);
• The intended parents.

While not every surrogacy arrangement involves all of the above individuals, it’s a good idea to understand how the law defines them and the role they play in the surrogacy arrangement.

The Birth Mother

Under section 6 of the Surrogacy Act 2010, the birth mother is defined as “the woman who agrees to become pregnant or try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement”.

The birth mother is also known as the surrogate and she needs to be at least 25 years old when she enters into the surrogacy arrangement.

While it’s not a legal requirement in NSW that the birth mother has previously had children, it is highly recommended and certainly preferred by the counsellors and IVF clinics.

The Birth Mother’s Partner

The birth mother’s partner is defined as “a birth mother’s spouse or de facto partner at the time when the birth mother enters into a surrogacy arrangement”. It’s important to clarify the nature of any relationship that the birth mother is in because the birth mother’s partner is required to also receive counselling and independent legal advice before entering into the surrogacy arrangement as well as after the child is born.

The Birth Parent

The “birth parent” means “a person (other than an intended parent) who is recognised at law as being a parent of the child at the time when the child is born”.

The Intended Parent

According to legislation, an “intended parent” is “a reference to a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement”.

The intended parent must be a single person or a member of a couple and each intended parent must be at least 18 years old at the time when they enter into the surrogacy arrangement. There is no partiality in relation to the sexuality of the intended parents in New South Wales.

The above is a basic overview of the various roles and requirements of individuals associated with the surrogacy process. If you’re considering surrogacy either as an intended parent or as a surrogate, please contact us to speak with one of our surrogacy lawyers.

Surrogacy Enquiry

For more information on our surrogacy services and quotes on our professional fees, please contact us or visit our quoting page. One of our experienced surrogacy lawyers would be more than happy to get in touch to see how we can best assist you along your journey.

Surrogacy and Egg Donation

Considering that surrogacy laws in NSW have only been in place since 2006, it’s not surprising that there’s still much more to be discovered and uncovered. There has not been sufficient time to develop volumes of case law and precedents to guide us through every aspect of surrogacy.

One of these aspects is the issue of whether the surrogate and the egg donor can be the same person.

While this may not be a dilemma faced by all Intended Parents, it is one that needs to be addressed. When the question was first posed to me, my initial thinking was “why not”? After all, that is the case with most pregnancies, and ultimately, the purpose of the application for parentage order is to transfer parentage from the Surrogate to the Intended Parents, regardless of genetic connection.

So why is this a topic of discussion?

Part of the lack of clarity around this issue is because the legislation dealing with surrogacy is silent on this topic. It does not afford any guidance or propose a position on the matter, which leaves the practitioners in this area to come up with certain rules or “best practices”. In fact, many IVF clinics have internal policies which state that the surrogate and egg donor cannot be the same person.

This provides an additional hurdle for Intended Parents who are in this position. While it does not necessarily mean that your surrogacy journey has come to a standstill, it does present a unique set of challenges including finding an IVF clinic to suit your circumstances or satisfying the ethics committee but ultimately, it is not against the law for your surrogate and your egg donor to be the same person.

If you need assistance navigating the legislative rules and requirements through your surrogacy process, do get in touch. Our lawyers would be happy to help as best we can.

Surrogacy Enquiry

For more information on our surrogacy services and quotes on our professional fees, please contact us or visit our quoting page. One of our experienced surrogacy lawyers would be more than happy to get in touch to see how we can best assist you along your journey.

Are Surrogacy Arrangements Necessary?

The first legal aspect in any surrogacy process is the surrogacy arrangement. The surrogacy arrangement basically documents the understanding between the parties – that the Surrogate agrees to try to become pregnant and the child born from that pregnancy is then transferred to the Intended Parents.

We’ve previously touched on the requirements of a surrogacy arrangement but in a nutshell, in order for a surrogacy arrangement to be in accordance with the Surrogacy Act 2010, it must encompass the following:

• The surrogacy arrangement must be in writing;
• The surrogacy arrangement must not be a commercial surrogacy arrangement;
• The surrogacy arrangement must be a pre-conception surrogacy arrangement.

As you can see, the list is not very long and nor are the requirements burdensome. In fact, the main point to keep in mind about the requirements of a surrogacy arrangements is set out in section 6 of the Surrogacy Act 2010:

6 Enforcement
(a) A surrogacy arrangement is not enforceable.

(b) However, an obligation under a surrogacy arrangement to pay or reimburse the birth mother’s surrogacy costs is enforceable but only if the surrogacy arrangement is a pre-conception surrogacy arrangement.

What is the point of a Surrogacy Arrangement then?

Well, firstly, legislation requires the surrogacy arrangement to be in writing so regardless of how long or short, detailed or generic your surrogacy arrangement is, it needs to be in a written form.

Secondly, like any other agreement, the surrogacy arrangement essentially documents the understanding between the parties to the arrangement. So, even though the nature of the surrogacy arrangement is altruistic and based on the goodwill and good intentions of the parties, it’s good for this understanding between the parties to be recorded so that everyone is “on the same page”.

Due to the non-binding nature of the surrogacy arrangement and the minimal legislative requirements, there are some Intended Parents who choose to prepare the document themselves while others have opted to engage a lawyer to assist them with the process. There really is no right or wrong way, it just depends on what you feel comfortable with.

Our team has experience with both drafting surrogacy arrangement and reviewing surrogacy arrangements that have been prepared by the parties. If you need assistance with your surrogacy arrangement, please do get in touch, our team would gladly assist in any way we can.

Surrogacy Enquiry

For more information on our surrogacy services and quotes on our professional fees, please contact us or visit our quoting page. One of our experienced surrogacy lawyers would be more than happy to get in touch to see how we can best assist you along your journey.