It is an offence in NSW to enter into commercial surrogacy arrangements.

The Surrogacy Act 2010 came into effect on the 1st March this year, making it illegal to begin commercial surrogacy arrangements after that date, however, regulations to be made under the Act do make provision for those who entered written agreements before that commencement date.

This includes ongoing arrangements with the surrogate mother, hospital or clinic that arise out of the original contract. This exemption under the legislation acknowledges that people may already have made substantial financial outlay and seeks to avoid unfair disadvantage from the change in legislation. However, complications in this arrangement may exist under the Crimes Act 1900 (NSW). It is wise to contact your solicitor to discuss the impact of this new legislation, and how it interacts with existing legislation, and its impact on individual circumstances. 

Who are the parents?

Under previous legislation, in most cases being governed by the Status of Children Act 1996, a child’s legal parents were its birth parents — meaning a woman giving birth to a child and her husband or de facto partner. For people who became or were intending to become parents under a surrogacy arrangement, and who, in fact, might be raising the child, they could then face ongoing legal problems, such as getting a passport for the child or enrolling the child in school. The new Surrogacy Act sets out to provide legality for these and other problematic circumstances. 

Part 3 of the Act provides a structure for the Supreme Court to transfer full legal parentage of children from the birth parent to the prospective parent under the surrogacy contract. This by-passes the adoption process, which can prove cumbersome and lengthy as it was designed to accommodate other sets of circumstances.

What does the new legislation do?

The new Act is designed to accommodate altruistic surrogacy and to move against commercial surrogacy for reasons of protecting the child and providing a detailed structure that surrogate parents can operate within legally. The new regime gives the intended parents legal capacity to make decisions on behalf of the child.

The intended parents can apply for a parentage order between 30 days and six months after the birth of the child. The 30-day period is seen as a cooling off period for the birth mother, however, it is not without opposition on the grounds that it undermines the integrity of altruistic contracts.  the upper limit of six months is designed to achieve stable and secure arrangements for the child. 

Clause 16 stipulates that a parentage application must be supported by an independent counsellor’s report to assure the order is in the best interests of the child. The Act does not impose conditions about the gender of the parents.