Surrogacy in Australia
“Surrogacy refers to an arrangement whereby a woman, known as a “surrogate mother”, agrees to bear a child on behalf of a person other than the surrogate mother’s partner or a couple – the child’s “intended parents”. From a legal point of view, surrogacy arrangements are either altruistic or commercial. Altruistic surrogacy is a surrogacy arrangement that does not involve the payment of fees to either the surrogacy mother or a surrogacy agency. Commercial surrogacy, on the other hand, is a surrogacy arrangement involving the payment of such fees.
With the exception of the Northern Territory, each State and Territory has surrogacy legislation. The legislation is complex and inconsistent among the States and Territories. Moreover, it does not make provision for parentage orders relating to children born as a result of a commercial surrogacy arrangement.
Courts with jurisdiction under the Family Law Act 1975 (Cth) can confer legal status upon intended parents in relation to a child born from a commercial surrogacy arrangement. This can may be achieved by either a declaration of parentage or an order for parental responsibility. The availability of the former is uncertain given the Family Courts’ inconsistent approach to determining whether such declarations are available to intended parents. The likelihood of a court exercising jurisdiction under the Act making orders for parental responsibility is substantially more likely.