FAQs

You need surrogacy legal advice because:

• It’s always important to know how the surrogacy laws apply to you and what your rights and obligations are in relation to surrogacy arrangement; and
• (probably the main motivation for many clients) in New South Wales, the Surrogacy Act provides that you must have received surrogacy legal advice before you can successfully apply for a parentage order in the Supreme Court and be legally recognised as the parents of a child born through surrogacy.

Section 9 of the Surrogacy Act provides that a surrogacy arrangement is a ‘commercial surrogacy arrangement’ if it involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person:

• agreeing to enter into or entering into the surrogacy arrangement, or
• giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or
• consenting to the making of a parentage order in relation to a child of the surrogacy arrangement.

However, a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee, reward or other material benefit or advantage provided for is the reimbursement of a birth mother’s surrogacy costs (s9(2)).

The penalty for entering into a commercial surrogacy arrangement is a maximum of 2,500 penalty units ($275,000), in the case of a corporation, or 1,000 penalty units ($110,000) or imprisonment for 2 years (or both), in any other case (s8).

This is the definition of a commercial surrogacy arrangement in New South Wales only. Other states and other countries around the world may have different definitions and if your surrogacy arrangement has some connection to that state or country be aware that you may also be subject to those laws as well.

Section 4 of the Surrogacy Act provides that an “affected party”, in relation to a surrogacy arrangement, means each of the following persons:

1. the birth mother
2. a birth mother’s partner (if any)
3. another birth parent (if any)
4. the intended parents

The ‘birth mother’ is the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement. (Section 5 of the Surrogacy Act)

An ‘intended parent’ is a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement. (Section 5 of the Surrogacy Act)

For more information, see Section 36 of the Surrogacy Act.

The ‘birth mother’ is the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement. (Section 5 of the Surrogacy Act)

An ‘intended parent’ is a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement. (Section 5 of the Surrogacy Act)

Section 5 of the Surrogacy Act provides that a “surrogacy arrangement” means:

1. an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a “pre-conception surrogacy arrangement”), or
2. an arrangement under which a pregnant woman agrees that the parentage of a child born as a result of the pregnancy is to be transferred to another person or persons (a “post-conception surrogacy arrangement”).

Section 5 of the Surrogacy Act provides that the ‘birth mother’ is the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement; and an ‘intended parent’ is a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement.

For more information, see Section 36 of the Surrogacy Act.

An international surrogacy arrangement is a surrogacy arrangement that involves intended parents and a surrogate mother who live in different countries.

Complications with international surrogacy arrangements can arise from the difference in the laws between the countries, the need for visas or recognition of citizenship by descent, and the existence or suspicion of a commercial surrogacy arrangement between the intended parents and the surrogate mother. The Australian Government is aware of Australians citizens and residents travelling to other countries to have children through surrogacy. The Department of Immigration and Border Protection has a specific fact sheet dealing with the issue of international surrogacy and what it means in terms of obtaining an Australian visa or citizenship for the child.

No, there are many instances when family or friends who live in different countries may enter into a surrogacy arrangement which is not a commercial surrogacy arrangement. However, if the intended parents and the surrogate mother (or the surrogate mother’s partner) do not know each other or had no other connection other than the surrogacy arrangement – it would be reasonable to suspect that the parties have entered into a commercial surrogacy arrangement. Anyone intending to enter into such an arrangement should take extreme caution with respect to the current law in New South Wales prohibiting commercial surrogacy arrangements (even if that arrangement was with someone in another country) and be aware of the laws of the other country if that country also prohibits commercial surrogacy.

Section 39 of the Surrogacy Act provides that on making of the parentage order in relation to a child:

1. the child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and
2. the child stops being a child of a birth parent and a birth parent stops being a parent of the child.

Accordingly:

1. the child of the surrogacy arrangement, has the same rights in relation to the intended parent or parents named in the order as a child born to the parent or parents, and
2. the intended parent or parents named in the order have the same parental responsibility as the birth parent had before the making of the order.

Surrogacy NSW is maintained and supported by Phang Legal, a boutique law firm based in the Parramatta CBD.

We assist birth parents and intended parents within the Sydney metropolitan area, other parts of New South Wales and interstate as they embark on the surrogacy journey. Our clients receive a high level of professional legal services at a competitive rate. We offer practical and cost effective solutions for your peace of mind and satisfaction. We take pride in offering professional legal services that touch the lives of others, and positively influence the community around us. It is our pleasure to serve people and serve the community.

Phang Legal Pty Limited was incorporated in 2002. Registered with the Law Society of New South Wales as an incorporated legal practice, Phang Legal embodies the sole legal practice founded by its solicitor director, Mr Ern Phang.

Ern Phang was admitted as a legal practitioner in New South Wales in 1998. In 2002, he established a sole legal practice in the Sydney CBD, but with the growth of clients based in the suburbs of Sydney encouraged restructuring later that year and a strategic and physical move to the Parramatta CBD – the geographical centre of the Sydney and the future site of the NSW Government $230 million Parramatta Justice Precinct.

Phang Legal continues to provide the same level of seamless service and client satisfaction that Ern Phang has been known to provide to his clients over the years. The success of the past is only the prologue for the future ahead.

Our mission is to serve people and serve the community through providing quality professional legal services. We ensure total client satisfaction by providing practical and cost effective solutions, and we treat every client as though they were our only client. We understand and appreciate that our continued success relies on the trust and support of our clients.

We dedicate ourselves to serving the community to the best of our ability, and to advise, apply and represent the law for the greater good. Our satisfaction comes from making a positive difference. Continued dedication and quality service to clients and the community – Phang Legal.

“My dedicated team of lawyers and support staff do their best to make the experience with us as smooth, hassle free, and pleasant as possible for our clients, regardless of whether they’re the intended or commissioning parents or the surrogate or birth parents. In most cases, this is the first time our clients are going through this process – but for us, we’ve experienced this vicariously through our clients before, and that’s why we’re here to provide confidence, clarity and peace of mind throughout.

Not many people realise, but the unfortunate reality of the medically challenging situations that our clients face means that many who seek our assistance to prepare them for the legal journey never complete it because the medical procedures, whatever they undertake, turns out to not be successful – and that’s heart breaking. Our clients invest so much into this process and the procedures. Not just in terms of time and money, but also mentally and emotionally. They pin their hopes expectantly into what they dream of as being the outcome – to become parents. For some, it is a dream come true and for others it’s not such a happy outcome. But that’s what it is.

All we can really assure our clients of, from our perspective, is our dedication to ensuring we’re here to support them in what their decision to have a child born through surrogacy.”

– Ern Phang, director

You need to obtain surrogacy legal advice from us if you or the other party to the surrogacy arrangement live in New South Wales, if the child is born in New South Wales, or if there is some other connection with New South Wales.

In New South Wales, surrogacy arrangements are governed by the Surrogacy Act 2010. The Act prohibits commercial surrogacy arrangements and specifies the requirements for obtaining a parentage order for the child born through surrogacy to be recognised as the child of the intended parents instead of the surrogate mother (and her partner).  One of the requirements is that the affected parties, being the intended parents and the surrogate mother and her partner, must obtain independent legal advice regarding the surrogacy arrangement.

Even if you never intend to apply for a parentage order under the Surrogacy Act in New South Wales, but you otherwise live in New South Wales, you need to be aware that the Act still applies to you. This is important because it means that if you have a commercial surrogacy arrangement with someone else in another state or even in another country, the fact that you live in New South Wales means that you may be prosecuted for infringing the Act’s prohibition on commercial surrogacy.

While general advice regarding the application of the Surrogacy Act to interstate and an international surrogacy arrangement (altruistic and commercial) is part of the legal advice services and representation that we provide, it is not our focus. The focus of our surrogacy legal advice is predominantly in relation to the legal process to obtain a parentage order in New South Wales.

We have assisted both intended parents and surrogate mothers (and their partners) through the legal aspects of the surrogacy process for many years – even before the surrogacy laws were introduced in New South Wales.

We’ve supported many parents through the IVF process and provided some advice and guidance to other parents who are considering other alternatives such as international surrogacy or adoption. We recognise that the law regarding surrogacy (as well as other related artificial reproductive technologies) have a long way to go before they can catch up with biomedical advancements and social acceptance, but we are committed to representing and assisting you through this process.

On more than one occasion our office has been contacted by intended parents looking for surrogate mothers, and by interest surrogate mothers looking for intended parents.

Yes, at first it did seem a little unusual that people would be looking to contact complete strangers to share the experience of having a child through surrogacy, but since there have been quite a number of enquiries – it is obviously more widespread than initially thought.

Unfortunately, at this stage, we do not have a ‘match-making’ service for surrogacy arrangements – but given the interest so far, this may be a possibility in the near future.

Please be aware that given the current state of the legislation and the prohibition regarding commercial surrogacy arrangements, there is no intention to charge a fee for this service and we will not be responsible for the nature of any arrangement that should arise between parties that we may have introduced. Those arrangements would be entirely between those parties and not involve us in any way.

If we eventually launch this kind of service, and you are interested in being involved from the beginning, then best way to keep informed of any develops is by submitting an expression of interest below and your email will be added to our mailing list.