Bob and Sally have recently been blessed with a child, born from a surrogate arrangement between them and Jenny and her partner, Paul. For the surrogacy arrangement Bob and Sally provided Jenny and Paul an embryo, fertilised using genetic material from Bob and Sally (sperm from Bob, an egg from Sally).
So, who are the parents of the child?
Genetically speaking, the child is certainly Bob and Sally’s child. But from a legal perspective, and in accordance with Section 14 of the Status of Children Act 1996 (NSW), in New South Wales, the parents of the child are Jenny and Paul. As you can imagine, this can create all sorts of issues. Bob and Sally will need to get Jenny and Paul’s consent if they wanted to enrol their child in school… or when needing a passport… or in the worst case scenario, both Jenny and Paul may be liable to pay child support.
Certainly this sounds counter-intuitive, but it’s an unfortunate and curious result of the way our legal system has developed. It’s not an easy fix either – deleting that section will raise a hole in relation to parents who wish to use donor eggs or donor sperm to conceive.
This means that the birth certificate has to be amended. Fortunately, the Surrogacy Act 2010 (NSW) provides a way for the birth certificate to be amended. This can be done by way of making a application for parental orders in the Supreme Court of New South Wales. We’ve discussed this topic before, but in summary, the Supreme Court of New South Wales must be satisfied that it’s conditions for the transfer of parentage from Jenny and Paul to Bob and Sally are met.
We’ve got experience in giving advice to both birth parents and the intended parents. We also have experience in bringing an application for parentage orders to the Supreme Court of New South Wales. If you need help with these matters please do not hesitate to give us a call.