Surrogacy | Rafton Family Lawyers Sydney


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    Surrogacy is a sensitive issue and should be approached with a medical and legal team of professionals.

    If surrogacy is entered into without proper legal advice, the results can become extremely complicated and the intended parents may end up having no rights to parent the child.

    We help families navigate this process safely and with full knowledge of their rights and correct procedures to follow.

    Surrogacy is when a woman agrees to carry and birth a baby for another person. When the baby is born, the birth mother hands over custody of the child to the intended or commissioning parents.

    There are many legal issues to consider during the process of surrogacy, including:

    • Whether the surrogacy is organised internationally
    • The rights of the birth mother
    • Different laws in different states in Australia
    • How to legally find a qualified surrogate mother
    • How to legally advertise yourself as a surrogate

    Before you begin a life-changing process like surrogacy, it is essential to get legal and medical advice, as this can affect the legitimacy of the intended parent’s rights if the law is not followed.

    Traditional surrogacy

    This is when a woman provides her own egg for the surrogacy. This practice is not usually available in Australian clinics because the birth mother is biologically related to the child, causing complicated legal issues.

    Commercial surrogacy

    Commercial surrogacy is when the birth mother is compensated financially for the surrogacy. In Australia, the intended parents may cover the surrogate mother’s medical expenses, but any other type of compensation is illegal.

    Altruistic surrogacy

    This is where there is no financial compensation for the birth mother, who goes through the pregnancy as an act of kindness. This type of surrogacy is allowed in Australia.

    Gestational surrogacy

    This is the most common form of surrogacy and involves a sperm and egg being artificially inseminated into the birth mothers uterus. The child is not biologically related to the birth mother.

    Up until the Surrogacy Act was passed in Australia in 2010, children born via surrogacy kept the last name of their birth mother (or her partner). This meant that the child’s intended parents had to apply for adoption even though they were already raising the child.

    The previous laws also created complications for the child and intended parents to prove their relationship to each other. This occasionally led to difficulty enrolling children in school, being left out of inheritances and unable to apply for medical cover.

    The Surrogacy Act now allows parents to apply for parentage orders thirty days after the child is born until the child turns 18. These orders allow the intended parents to have full parenting rights and the child to take on their family name if the order is successful.

    There are conditions to these rights being granted:

    • The Court must be satisfied that making a parentage order is in the best interests of the child
    • It must be an altruistic, gestational surrogacy
    • The birth mother and intended parents must be at least 25
    • Both parties have sought legal advice and counselling
    • The medical or social reasons for the surrogacy needs to be demonstrated
    • Surrogacy arrangements must be in writing and entered into before conception
    • The child is living with the intended parents when the application is lodged

    If you are considering becoming a surrogate or using a surrogate mother, you must get the right legal advice first by engaging a lawyer.

    At Raftons, we specialise in family law matters, including surrogacy. We can help you navigate this process safely with minimal risk to yourself and everyone involved.

    For more information, contact one of our Sydney offices on 1300 4 FAMILY.

    Read our plain English handbooks

    These fact sheets are designed to provide an overview of the relevant issues and systems so that you have a better understanding of the process.


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