A surrogacy arrangement is between a woman (the birth mother) and another person or couple (the intended parents) where the birth mother agrees to become pregnant with a child for the intended parents. After the child’s birth, the birth mother gives the child to the intended parents.
In Queensland, commercial surrogacy arrangements (where there is a payment, reward or any material benefit to anyone entering into a surrogacy arrangement or agreeing to a parentage order) are prohibited. This also includes overseas commercial surrogacy agreements. Queensland residents who enter into commercial surrogacy agreements overseas may be fined up to $110,000 or jailed for up to two years.
Only non-commercial surrogacy arrangements are legal in Queensland.
Surrogacy arrangements are not enforceable. Either party may change their mind at any time before the court makes a parentage order. However, a court may enforce the part of the arrangement relating to paying the birth mother’s reasonable surrogacy costs in some circumstances.
Non-commercial surrogacy – who can partake?
Currently in Queensland, any person can enter into a non-commercial surrogacy arrangement. This is regardless of your relationship status – either married or de facto couple (including same-sex de facto couples) or single.
You can make a surrogacy arrangement only before the birth mother becomes pregnant.
For the intended parents, there does not need to be a genetic connection to the child or birth mother.
Surrogates (intended parents and the birth mother) must be 25 years or older and the birth mother must have previously given birth. Importantly, the surrogate’s own genetic material must not be used in the conception.
The intended parents, together with their surrogate, must submit to police checks, child protection order checks and attend counselling.
Rights of the birth mother
If you are the birth mother, you can decide how the pregnancy will occur and what genetic material will be used. You may agree to use any method for conception, such as IVF, artificial insemination, self-insemination or natural conception.
During pregnancy, you have control over your pregnancy, regardless of what you’ve agreed to in the surrogacy arrangement.
You may decide at any stage prior to the court issuing a parentage order to not give up the child to the intended parents.
Rights of the intended parents
In Queensland it is illegal to advertise for someone to act as a birth mother.
Any intended parent, who is female, must be unable to conceive or deemed unable or unlikely to carry a healthy child to full term.
If the intended parent is a man, there must be a medical or social need for the surrogacy arrangement.
You are allowed to pay or reimburse the birth mother’s reasonable surrogacy costs.
If you want a court order to transfer the parentage of a child born through a surrogacy arrangement, you must meet certain legal requirements before entering into the arrangement.
If the court grants a parentage order it means the birth parent/s no longer have a legal parental relationship with the child and you are now the child’s legal parents.
The child must live with you for 28 days before you apply to the court for an order transferring parentage. The child must be between 28 days and 6 months old when you apply.
You can register the parentage order with the Registry of Births, Deaths and Marriages and have the child’s birth certificate amended accordingly.
At any stage, prior to the court issuing a parentage order, you may decide not to permanently care for the child.
For more information on surrogacy or any other family law matters, contact our experienced family lawyer, Mark Orchard, for a free initial consultation.
Phone: 07 4639 0358