Written Surrogacy Arrangements
As a couple looking at having a child through surrogacy, after you have identified your surrogate, the next step is to enter into a surrogacy arrangement.
Importantly, you must enter into this arrangement BEFORE your surrogate becomes pregnant (ie, a pre-conception surrogacy arrangement). A pre-conception surrogacy arrangement is necessary if you eventually want to successfully apply for a parentage order, declaring that the child is legally recognised as your child.
In basic terms (see below for the legislative references), a surrogacy arrangement must be in writing and address the basic agreement to become pregnant and when born, the child’s parentage would be transferred. However, at this point, many people find themselves a little lost simply because the Surrogacy Act does not provide direction as to how and what they are supposed to do in terms of writing the surrogacy arrangement.
Fortunately, this is where we can assist. Our experienced family law lawyers have assisted many couples with preparing and reviewing written surrogacy arrangements. You can either choose from our standard precedent surrogacy arrangements, but if they are not relevant or suitable to what you and your surrogate or her partner have agreed, we can easily customise the surrogacy arrangement to meet your specific requirements and reflect your situation.
What does the Surrogacy Act say about surrogacy arrangements?
Section 5(1)(a) states:
“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”)”
Section 6 states:
“(1) A surrogacy arrangement is not enforceable.
(2) 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.”
Section 23(1) states:
“The surrogacy arrangement must not be a commercial surrogacy arrangement.”
Section 24(1) states:
“The surrogacy arrangement must be a pre-conception surrogacy arrangement.”
Section 34(1) states:
“The surrogacy arrangement must be in the form of an agreement in writing, signed by the birth mother, the birth mother’s partner (if any) and the applicant or applicants.”
Section 36 states:
“Each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement.
The legal advice obtained by the birth mother and the birth mother’s partner (if any) must have been obtained from an Australian legal practitioner who is independent of the Australian legal practitioner who provided legal advice about the surrogacy arrangement to the applicant or applicants.”
What does the Surrogacy Act not say about surrogacy arrangements?
The Surrogacy Act does not say:
- Who or how to write a surrogacy arrangement.
- The contents, form or format of a written surrogacy arrangement, aside from the agreement to be pregnant and the parentage of the child.
What should you do about surrogacy arrangements?
In the absence of clear direction from the Surrogacy Act as to how you should write a surrogacy arrangement and what that surrogacy arrangement should contain, it is important to obtain specific legal advice from an appropriately qualified legal professional.
If you have an existing or proposed surrogacy arrangement and you need us to review it to ensure that it complies with the Surrogacy Act (and/or for independent legal advice as required by the parentage order), please contact us by uploading a copy using the form below.
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.
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.