It was with pleasure that Mathews Family Law & Mediation Services learned that the much longed for child of a surrogacy arrangement in which Mathews Family Law & Mediation Services represented the surrogate couple had safely arrived.

Mathews Family Law congratulates the commissioning parents and the surrogate couple on a more than successful outcome!

Mathews Family Law provides legal advice to parties entering into a surrogacy arrangement under the Assisted Reproductive Treatment Act (Vic) 2008 (ARTA).

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Surrogacy – when another woman carries and gives birth to a child for another person and then gives that child over – started thousands of years ago when infertile women offered their handmaids to childless husbands.  Since then, the technology has advanced quite a bit and now includes many variations of the traditional surrogate.   These scientific developments – including IVF and the ability to freeze sperm and eggs – have necessitated legal changes throughout the world.  Questions abound regarding the ethics of surrogacy, the legal status of the surrogate and the parents and the ability of nontraditional families (same sex couples, singles) to use surrogates to have children.

There are two types of surrogacy.  In traditional surrogacy, also known as genetic contracted surrogacy, the egg is from the surrogate and the sperm is donated by the father.  This links the fetus genetically to the surrogate.  Gestational surrogacy involves both an egg and sperm donation (one or both may come from the intended parents) and involves In Vitro Fertilization (IVF), in which the egg is fertilized in a petri dish, and the embryo is then implanted into the surrogate.  The surrogate has no genetic connection to the fetus with gestational surrogacy.  This distinction is important for determining who are the legal parents of the child and what citizenship the child obtains.

The laws surrounding surrogacy in Australia are somewhat complex.  Commercial surrogacy, where a woman is actually paid to carry the child, is illegal in all states in Australia.  Overseas commercial surrogacy – primarily in India, the United States and Thailand is against the law in New South Wales, Queensland and the Australian Capital Territory.  Altruistic surrogacy, in which a woman has no financial gain from carrying the child (although reasonable expenses, such as medical costs, travel, work lost, are covered by the parents) is legal in all states in Australia.  The Assisted Reproductive Treatment Act 2008 (ART Act) came into force in Victoria in 2010, and opened more doors for surrogacy.

Some Important Laws on Surrogacy in Victoria in the ART Act

1. The woman serving as s surrogate must be at least 25 years old, previously gave birth to a live child and is NOT using her own eggs in the surrogate pregnancy (gestational surrogacy).
2. Everyone involved in the surrogacy arrangement must be approved by a Patient Review Panel.  The Panel will make sure that all of the requirements in (1) are met and, in addition, that all those involved received legal advice and counseling.
3. The Patient Review Panel may approve a surrogacy plan, even if all of the conditions in (1) and (2) above have not been met, in exceptional circumstances.
4. Those involved may also have to undergo a police check (to determine if there is a criminal record) and a child protection order check.
5. No advertising!  Nobody may “publish” any type of notice or advertisement regarding a person’s willingness to be a surrogate or a person’s search for a surrogate.

In Victoria, the Assisted Reproductive Treatment Act 2008, which came into effect in Victoria in 2010, provides greater rights for same-sex couples in the area of surrogacy.  Currently the law in Victoria permits only gestational surrogacy (link to page on surrogacy in Australia) and requires the involvement of two different women for the purpose of surrogacy – the woman who will carry the child and another woman to donate her eggs.  Neither woman may be paid for her services.  The law prohibits any advertising or notification for surrogacy services (to be one or to hire one), but advertising for an egg donor is permitted.  Men who have limited fertility may use a sperm donor.

Becoming the Legal Parents

1.    The Birth Certificate

The surrogate will automatically be listed as the child’s mother on the birth certificate, and her partner (if she has one) as the other parent.  The commissioning parents must turn to the courts for a Substitute Parentage Order  to be legally registered as the child’s parent(s).

2.     Importance of Location

Commissioning parents can apply for a Substitute Parentage Order only if: (1) the child was conceived as a result of a procedure that took place in Victoria AND; (2) the commissioning parents live in Victoria at the time the application for a parentage order is submitted.

3.    Time is of the Essence

Commissioning parents must apply for the Substitute Parentage Order no less than 28 days after the birth and not more than 6 months after the child is born.  The court may make exceptions.

4.    When the Court will give the Order

A court will give a Substitute Parentage Order when ALL of the following requirements have been met or proven to be true:

• Making the order is in the best interests of the child
• A Patient Review Panel approved the arrangement (if a registered ART provider assisted in the process)
• The child was living with the commissioning parents when the application for the order was made
• The surrogate mother and her partner (if she has one) did not receive any material benefit or advantage from the surrogacy arrangement
• The surrogate mother freely consents to the order

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