Surrogacy and Adoption

In light of the ever changing circumstances faced by prospective parents, it’s crucial to grasp the challenges Australians encounter when planning to start a family. At Aila Rose Melasecca Barristers & Solicitors, we understand the legal complexities surrounding family planning and are able to provide tailored and comprehensive guidance to all prospective parents.

Our firm specialises in addressing issues in relation to surrogacy and adoption, taking into consideration the existing restricted processes currently in place in Australia. We uphold a non-discriminatory approach towards individuals seeking to build a family, whether they’re grappling with infertility, are part of a same-sex partnership, or are single given we recognise its significance.

Surrogacy Laws in Australia

When discussing surrogacy, there are two primary forms:

  1. Traditional surrogacy which occurs when the surrogate provides their own egg, usually through artificial insemination; and
  2. Gestational surrogacy which occurs when all genetic material is provided by the intended parents or a third party.

Surrogacy Arrangements

 Surrogacy arrangements are generally categorised as either being altruistic or commercial.

  1. Altruistic surrogacy involves no financial compensation for the surrogate beyond reimbursement for pregnancy-related expenses. This means surrogates do not receive any compensation for acting as a surrogate. The intended parent or parents may reimburse surrogates for any costs or medical expenses that are associated with pregnancy however they do not provide any other form of financial incentive to a surrogate (including the provision of goods and services).
  2. Commercial surrogacy is an arrangement in which a surrogate agrees to act as a surrogate for the intended parent or parents in return for a reward (usually a monetary payment) which goes above and beyond the reimbursement of pregnancy-related expenses.

State-by-State Regulations in Australia

Surrogacy regulations vary across each Australian State and Territory. The lack of uniformity in surrogacy law nationwide means that prospective parent or parents often experience significant difficulty in navigating the rights of them or the surrogate.

However, before we provide a brief overview of the State by State Regulations regarding surrogacy in Australia it is important to note that whilst altruistic surrogacy is permitted nationwide commercial surrogacy is considered illegal.

As it currently stands, the lack of uniformity regarding surrogacy regulations is best exemplified through the age requirements for surrogates to participate in a surrogacy arrangement. Whilst South Australia and the Australian Capital Territory allows individuals over the age of 18 to act as a surrogate all other Australian States and Territories require surrogates to be at least 25 years old.

In most jurisdictions, a medical need for surrogacy is required (although New South Wales, Tasmania, Queensland and Victoria allow surrogacy for social reasons, such as same-sex couples). It should be noted that Western Australia specifically excludes ‘age’ as a suitable medical reason and that the Australian Capital Territory does not have any medical or social requirements for surrogacies.

In Victoria, Tasmania and the Australian Capital Territory, surrogates must have already given birth to children themselves before being allowed to act as a surrogate.

Surrogacy is open to same-sex couples in all States and Territories except for Western Australia.

Surrogacy is open to single women in all States and Territories except for the Australian Capital Territory however, the same is not true for single men.

A written agreement setting out the surrogacy agreement is required to be in place in all States and Territories except for in Victoria and the Australian Capital Territory.

In the Australian Capital Territory, Queensland and Victoria, individuals are not allowed to advertise or publish (online or otherwise) whether they are seeking a surrogate or wishing to be a surrogate themselves.

As it can be seen from the above, surrogacy is not a simple process and therefore it is recommended that parties considering entering into a surrogacy agreement obtain expert legal advice.

International Surrogacy Options

Whilst commercial surrogacy is prohibited in Australia, there are several States and Territories in Australia that have made allowances for residents to engage in international commercial surrogacy. Currently, New South Wales, Queensland and the Australian Capital Territory have placed further restriction on their residents from entering into international commercial surrogacy, therefore, a parent or parents who do so could face legal issues when returning to Australia.

Residents of the remaining Australian State and Territories however, are permitted to engage in commercial surrogacy arrangements in international jurisdictions which allow for such arrangements to take place. When considering whether to enter into an overseas surrogacy arrangement (especially a commercial one), Aila Rose Melasecca Barristers & Solicitors is able to work with international family lawyers in countries where it is legal for the purposes of preparing an international surrogacy agreement that is enforceable in your State or Territory.

Consideration should also be given to the citizenship of a Child through surrogacy overseas and how the intended parent or parents plan on raising them in Australia as different countries have different laws regulating who may obtain citizenship.

Children born to Australians overseas do not automatically become Australian citizens as there are certain requirements that must be fulfilled when making an application. One such requirement is the provision of a surrogacy agreement that was entered into before the Child was conceived. This is a complex document that Aila Rose Melasecca Barristers and Solicitors in collaboration with lawyers where the surrogacy arrangement took place.

Other Legal Considerations Regarding Surrogacy

There are other issues that the prospective parent or parents need to consider prior to entering into any surrogacy arrangement. Firstly, it is important to acknowledge Parentage Orders made by a Court reflective of amending a Child’s Birth Certificate to reflect the intended parent or parents of a surrogacy agreement as opposed to the Child’s parents (essentially not including the ‘birth mother’ on the certificate).

In Queensland, in order for a Parentage Order to be made, the following criteria has to be met:

  1. The Order is in best interests of the Child;
  2. All parties received appropriate counselling about surrogacy;
  3. The Child either:

a. Had resided with the parent or parents for at least 28 consecutive days for any application was made for a Parentage Order;
b. Was residing with the parent or parents when an application was made for a Parentage Order; or
c. Is residing with the parent or parents at the time of the hearing regarding the application for a Parentage Order.

  1. The Parentage Order has been consented to by the surrogate (and her partner if she has one); and
  2. The Order must be in the best interests of the Child.

There are also time limitations for seeking a Parentage Order, which again differ from state to state.

Adoption Laws in Australia

Aila Rose Melasecca Barristers & Solicitors understands that navigating the legal intricacies of adoption can be both a challenging and difficult process.

In Australia there are three types of Adoption:

  1. Intra family adoption which occurs when a step parent or relative of a Child is seeking to adopt the said Child;
  2. Local adoption which refers to adopting a Child who was born or permanently resides in Australia; and
  3. Intra country adoption which occurs when an individual or individuals seek to adopt a Child from an international jurisdiction. Currently Australia has active adoption arrangements with 13 countries which allows Australians to adopt Children through the inter country adoption program.

All States and Territories in Australia practice open adoption which allows adopted Children to have a relationship with their birth parents if they wish to do so.

It should be noted that private adoptions are prohibited nationwide meaning that all adoptions must be conducted through the relevant State or Territory Authority. Any adoption conducted through a private agency will not be acknowledged by the prospective parent or parents’ State or Territory Authority to which it is unlikely that the Child will be permitted to enter Australia.

Similar to surrogacy regulations, adoption regulations vary across each Australian State and Territory. However, for the most part, prospective parents in Australia can commence the process of adoption by contacting their State and Territory Central Authority (“the STCA”) who will request them to fill out an expression of interest and or complete a questionnaire regarding their age, health, finances, occupation, religion, background, values, location and marital status.

The above factors are where the adoption requirements differ between the various States and Territories of Australia. For example, in Victoria there is no age limit to apply to adopt a Child; a prospective parent or parents only need to demonstrate that they are fit and healthy enough to care for a Child through to adulthood.

However, in New South Wales and South Australia prospective parents must be over 21 years of age and 18 years older than the Child to be adopted. Meanwhile, in Queensland, Tasmania, Western Australia and South Australia prospective parents need to be over the age of 18 and in the Northern Territory and Australian Capital Territory they are required to be over 25 years of age.

With respect to the martial status of a prospective parent or parents, all States and Territories in Australia allow single individuals, married couples, couples married by way of a traditional Aboriginal marriage, de facto couples and same sex couples to adopt. Most States and Territories in Australia do not have a requirement for the duration of a marriage prior to adoption, except for Victoria which requires a minimum of two years. Furthermore, in intercountry adoption applications, it is important to consider the regulations of the country in which the Child resides as there have been cases where single or same sex applicants have been rejected by the said country despite being approved in Australia.

Should the STCA of the State or Territory review the questionnaire and determine that the prospective parent or parents are potentially good candidates for adoption they will be invited to make a formal application and attend education seminars. The formal application will require the prospective parent or parents to complete a police check, medical check, working with children check as well as furnish financial statements, references and their life story to provide background information amongst other things.

Proceeding this the STCA will conduct a comprehensive assessment in accordance with the relevant State or Territory legislation which will involve extensive interviews with the prospective parent or parents as well as their reference and in-home visits. Whilst there is no time frame set for the length of these assessments generally they are expected to conclude within three to four months.

Should the prospective parent or parents’ application be approved then they will need to seek Parentage Orders to be made in the relevant State or Territory Court. In Queensland the Children’s Court has jurisdiction to hear and determine adoption proceedings.

In order for adoption orders to be made, the Children’s Court must be satisfied of the following:

  1. That the prospective parent or parents have met the eligibility requirements required by the relevant legislation;
  2. Consent has been provided by the individual or individuals who have parental responsibility over the Child (however if there is difficulty in obtaining this consent the Court has jurisdiction to dispense with this requirement); and
  3. The Order is in the best interests of the Child.

There are also time limitations for seeking a Parentage Order, which again differ from state to state.

Please call Aila Rose Melasecca Barristers & Solicitors today if surrogacy or adoption is something that you and your family are considering.

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