Surrogacy and parentage to undergo review

Date: Jun 27, 2012

Individuals seeking family law advice in relation to surrogacy and parentage could soon find that the guidance changes, as a review of current legislation has been requested by the attorney-general.

The Family Law council has been asked to assess how issues surrounding surrogacy and family formation are accommodated in the Family Law Act 1975.

Nicola Roxon explained that the review is necessary to establish whether or not the current legislation is meeting the needs of all parties involved in surrogacy.

"Surrogacy within family law is a complex and emerging issue that needs careful consideration as an increasing number of Australian families are being formed using artificial reproductive technology," she commented.

"Our laws need to be responsive to new family situations as well as provide adequate protections for children involved."

The attorney-general indicated that the Family Law Council is ideally placed to consider the issues at hand, while also making sure that the needs of the child are given paramount importance.

The council is asked to return with its findings before December 2013 - four new appointments have been made to the body prior to the review taking place.

Surrogacy laws in New South Wales were subject to an extensive review in 2009, where the report recommended that further objections should be shown to commercial surrogacy.

The law states that surrogacy must be carried out for altruistic means and that the birth mother should not receive any material or financial gain for going through the pregnancy.

As part of the 2009 review, experts from the Standing Committee on Law and Justice advised that any reasonable expenses paid to the mother are ascertained as early as possible to help eliminate commercial surrogacy.

The report authors also believed that the surrogacy arrangement should be met prior to conception and that all parties must receive legal guidance before entering into the agreement.

Furthermore, the inquiry suggested that courts should be given the jurisdiction to provide a parentage order to the intended parents, but only when it has been established that this would be in the child's best interests.

The child should also live with their intended parents at the time the application is made.

Prior to the report, intending parents in a surrogacy arrangement could only be recognised as the child's legal parents through adoption or by applying for a parenting order.

This would have to be sourced from the Family Court of Australia or the Federal Magistrates Court of Australia and stipulate who the child lived with and had day-to-day care of the,.

However, this would not grant full parental rights and responsibilities.