I get asked this question a lot! It’s understandable why… we have a whole heap of courts in Australia, and sometimes it can get confusing!
In New South Wales, the Surrogacy Act 2010 (NSW) says that a parentage order can be sought from the Supreme Court of New South Wales. We’ve talked about this before on this blog, but to refresh you, a parentage order is an order that tells the Registry of Births, Deaths, and Marriages to make changes to the birth certificate of a child, that the intended parents are to be recorded as the parents of a child in substitution of the birth parents.
Therefore the Family Court doesn’t get involved in this process!
That doesn’t meant that the Family Court can’t get involved, though… the Family Court can get involved, but it doesn’t have the power to give parentage orders. Instead, the Family Court has the power to make parentage orders, which sets out who has care of the child and who can make decisions on behalf of the child.
The Family Court would probably only get involved in a few situations – for example, where the intended parents have broken up, or where the Supreme Court of New South Wales is unable to make a parentage order. Theoretically, the Family Court can also get involved if the birth parents wishes to spend time with the child!
The Family Court also might get involved if the intended parents did the surrogacy abroad… but that’s a situation for another day!
Over the last couple of months, I’ve noticed an increasing number of clients ask us for advice in relation to ‘gestational surrogacy agreements’ from various fertility clinics in India.
After doing my own research, I’ve found that many of these clinics market themselves all over the world to people looking for a surrogate and assistance with artificial reproductive technology aspect of surrogacy. In my view, the service offering is generally quite attractive.
Not only do these clinics offer a ‘match-making’ service for intended parents looking for a surrogate, but they also provide ongoing care for the surrogate mother during pregnancy, medical assistance during child birth, and administrative services to have the child legally recognised as the child of the intended parents and consular/immigration assistance for the child to return with the intended parents to their home country. You could say that it’s a one-stop-shop for all your surrogacy needs. That does sound attractive doesn’t it?
The ongoing care aspect for the surrogate mother during pregnancy was especially interesting. Most facilities appeared to be setup like a 5-star hotel/hospital where surrogate mothers were under constant care (surveillance) while their diet, their lifestyle and their activities were controlled and continuously monitored – for the peace of mind and confidence of intended parents, as well as for the care and welfare of the surrogate mother and unborn child.
Considering the surrogate mother
Of course, it’s always possible to make various assumptions as to where and how the clinics identify suitable surrogate mother candidates, what surrogate mothers are offered in return for their services (and submission), and what surrogate mothers experience in terms of the conditions and treatment throughout the surrogacy process. From the feedback that I’ve received from clients (all of whom are intended parents) who have visited the clinics in India to meet with their doctors and surrogate mothers, the facilities are superb and the surrogate mothers are totally pampered and live in (relative) luxury.
At this stage, I’m sure the human rights activist inside you is beginning to ask other questions. Questions like, are surrogate mothers chosen from the poorest and most disadvantaged communities? Do surrogate mothers like being under 24/7 surveillance and do they have any privacy? Would they prefer to eat or do things which they’re not permitted to by the clinic? Can they leave the clinic any time they want?
I’m not saying whether it’s right or wrong (legal or illegal), or whether the surrogate mothers voluntarily or willingly sign up or contract themselves to the clinic, beyond whatever surrogacy arrangement or agreement exists between the intended parents and surrogate mother. They’re just open questions in my mind that I don’t have answers for right now. However, I’m sure if you’re considering surrogacy in India and these issues are important to you, then you should ask the clinics or do your own research to satisfy yourself.
Commercial or altruistic surrogacy
Also, while I didn’t investigate or research further into the financial arrangements between the surrogate mothers, clinics or the intended parents, I was assured by representatives from the various clinics that they only promoted altruistic surrogacy – not commercial surrogacy. Apparently, the fees and expenses paid by the intended parents was to the clinics for the services that they provided throughout the surrogacy process (part of which naturally is also applied to the surrogate mother’s expenses).
Without making any suggestions regarding the various arrangements offered by different clinics in India, probably the most important advice that I can offer at this stage is to just highlight the prohibition of commercial surrogacy under the Surrogacy Act.
Section 8 of the Surrogacy Act 2010 provides that:
“A person must not enter into, or offer to enter into, a commercial surrogacy arrangement. (Maximum penalty: 2,500 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.)”
Importantly, the Act does not limit when and how this prohibition applies, which means if you live in New South Wales then it applies to you regardless of where the surrogate mother lives, where the surrogacy procedures take place, or where the child is born. If you enter into a commercial surrogacy arrangement in India, you will be committing an offence under this section of the Act and you could be subject to the stated penalties (currently a penalty unit in New South Wales is $110). Whether the authorities are able to properly investigate or successfully prosecute these kinds of offences is another matter, but the law states what the law states.
Other Australian considerations for Indian Surrogacy
At this stage, I haven’t been approached for assistance in relation to parentage orders arising from these surrogacy arrangements, it appears to me that a parentage order might not be required. If the child born through surrogacy was legally recognised (ie, as named on the birth certificate) as the child of the intended parents in India and granted a visa/citizenship to Australia on that basis, then I suspect that legally that child will be a child of the intended parents in Australia and nothing further would be required in terms of a parentage order in Australia. As I said, in many cases, it’s a one-stop-surrogacy-shop.
Of course this is just my initial opinion based on the assumption of the complete process handled by the clinics in India as what has been reported to me so far, however different clinics offer different services and so ultimately each situation would need to be assessed separately.
Why India?
All of my clients offer the same reason for considering surrogacy in India – the cost. In India, the cost of finding a suitable surrogate, undergoing the medical procedures to achieve conception, expenses of the pregnancy and birth as well as the legal processes to recognise parentage is substantially less than Australia. Of course there are other options in terms of surrogacy destinations around the world, some of the other popular destinations being South East Asia (ie, Thailand) and Eastern Europe (ie, Georgia) but India tends to be the preferred destination time and time again due to the generally high level of professional (as well as English) education/qualification.
What next?
My Personal Invitation
Choosing to have a child through surrogacy or agreeing to be a surrogate mother is an important life choice that shouldn't be taken lightly. As the father of two boys, I personally know the joys (and challenges) of being a parent. I also understand why you're going through what you're going through to become a parent yourself. That's the human condition.
By the time you're reading this article, you've probably spent a small fortune on medical expenses and taken a ride on an emotional roller coaster which I'm sure has had a physical and psychological toll on you and your family. But if you're here, then you've come to the right place and you're heading in the right direction.
My team of lawyers and I have been helping intended parents and surrogate mothers (and their partners) understand their rights and obligations arising from surrogacy, as well as the legal process necessary to ensure a successful outcome, even before the Surrogacy Act was introduced. During this time, we've noticed that there's a general lack of reliable information regarding surrogacy in the public space (including the internet) and that's why we're proud to have developed this website. We developed this website to help you in your research, to understand your legal rights and obligations, and to guide you each step of the way in terms of the legal and social issues that you'll face.
Allow us to have privilege of advising you and representing you throughout the surrogacy process and share the joy of your new family.
ErnPhang Director
This website is maintained by Phang Legal, a boutique legal practice in Parramatta that provides legal advice and representation in surrogacy and family law related matters for intended parents and surrogate/birth parents across New South Wales.
Ern Phang is the solicitor director of Phang Legal. Ern regularly writes about his experiences in helping clients with understanding their legal rights and obligations in surrogacy matters.
All information contained in this article is for general purposes only and correct as at the time of publication. You should only rely on information and advice that is specific to your situation and current at the time you wish to rely on it.
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.
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.
Lately we’ve been getting a number of enquiries about surrogacy in foreign countries. Those who make those enquiries are normally frustrated in relation to the surrogacy process within NSW or within Australia.
In a recent case before the Family Court, Justice Ryan said:
“…the commissioning parents’ goal of the safe arrival of a longed for child often results in them overlooking or underestimating the legal issues involved.”
This is especially true where international surrogacy arrangements are involved. There are many issues involved when it comes to international surrogacy. Some of these issues involve:
Does the arrangement comply with Australian Law?
If you are a resident of NSW, does the arrangement comply with the requirements of the Surrogacy Act 2010 (NSW)?
Does the arrangement comply with the internal laws of the country where the child is born?
Who is the parent of the child? As a rule, unless otherwise specified, the mother of the child is the birth parent.
Can the country where the child is born make orders declaring that the parent of the child is the intended parent?
Can the country where the child is born make any orders giving the intended parent authority or guardianship over the child?
Will the child be an Australian Citizen? Can the child be an Australian Citizen?
Can the intended parent apply for a passport on behalf of the child?
How does everyone get back to Australia?
Will Australia recognise the birth certificate of the child?
You also have to keep in mind that the absence of surrogacy legislation in the foreign country does not necessarily mean that they have mechanisms or processes in place to recognise the intended parent as the parent of the child.
As you can see there are many issues to deal with when it comes to international surrogacy. Intended parents would do well to consider the potential minefield that this area contains.
