Who are the parents of the child?

From time to time, some of my surrogacy clients ask me:

“Why go through all of this to get a parentage order? Isn’t it a simple matter to get my name on the birth certificate for the child?”

Well, not really. The reason is because there is legislation in place saying who the parents of a child are presumed to be. In particular, Section 14 of the Status of Children Act 1996 (NSW) says that if a woman goes through a fertilisation procedure (being artificial insemination, a transfer of a fertilised embryo, or any other artificial or assisted conception technique), then it is presumed that she is the mother of that child (even if the ovum isn’t hers) and that her partner is presumed to be the father of that child.

This legislation was first put into place to address children who were born from donated eggs or sperm and to protect (and possibly encourage) egg and sperm donors. It’s quite likely that at the time this was put in, surrogacy was not a consideration of the lawmakers.

This means that if you go through a surrogacy arrangement, the birth mother and her partner would initially be the mother and father named on the birth certificate, even if they did not provide the genetic material for the child.

The Surrogacy Act 2010 (NSW) provides a legal pathway to remedy this situation by allowing the intended parents to make an application before the Supreme Court to declare that they are in the true parents of the child. That being said, there are a number of hurdles to jump through to get these orders. We’ll discuss this in future posts.