Surrogacy in Tasmania
Surrogacy is becoming a common practice in Australia for those individuals who are unable to have children naturally.
In Australia, surrogacy laws vary in each state and territory. This article will focus on the legal process for surrogacy in Tasmania.
1. The Surrogacy Arrangement
The Surrogacy Act 2012 (Tas) (Act) governs surrogacy in Tasmania. A ‘surrogacy arrangement’ is legally defined as a situation whereby a female person (the Birth Mother) seeks to become pregnant to give birth to a child, and for the child to be treated as the child of another person (the Intended Parent(s)).
Process
Surrogacy arrangements are typically captured within a contract, called a Surrogacy Agreement, so that a parentage order can be made after the child is born. The Birth Mother and the Intended Parent(s) must be parties to the Agreement. The Birth Mother’s spouse may also be a party to the contract. Where an egg donor is being used (who is not the Birth Mother), the egg donor may also be a party to the Agreement. The Agreement should be signed before the Birth Mother becomes pregnant. All parties to the Agreement are also required to undergo counselling with an accredited Surrogacy Counsellor before the Agreement can be finalised.
In Tasmania, it is illegal to enter into a commercial surrogacy arrangement. This means there must be no financial or material benefit received by any of the parties to the arrangement. Consequently, the Intended Parent(s) can only pay for the Birth Mother’s reasonable medical and legal costs associated with the surrogacy arrangement, and must not other pay or compensate the Birth Mother or her spouse.
Enforcement
The Birth Mother has complete autonomy over her medical treatment, including decisions as to whether to continue a pregnancy. She can also decide to withdraw from a surrogacy arrangement at any stage.
Under the Act, a surrogacy arrangement is not legally enforceable. However, the Intended Parent(s)’s obligation to pay the Birth Mother’s reasonable costs can be enforced by the Birth Mother under specific circumstances.
2. Parentage order
A Surrogacy Agreement does not make the Intended Parent(s) the legal parent(s) of the child. In order for the Intended Parent(s) to be named on the child’s birth certificate, and to have parental responsibility for the child, the Intended Parent(s) must apply for a parentage order in the Magistrates Court of Tasmania.
A parentage order application must not be made until at least 30 days after the child is born and no later than 6 months after the child is born. However, in certain circumstances the Court has discretion to grant a Parentage Order outside these timeframes.
The importance of having a proper Agreement becomes apparent when the Intended Parent(s) apply for a parentage order. There are extensive factors that the Court must consider when granting a parentage order. Most of these conditions can be satisfied by the parties having entered into a formal Surrogacy Agreement.
Importantly, a parentage order may not be made by the Court if:
- The surrogacy arrangement was commercial; or
- the Intended Parent(s) were younger than 21 years of age when the arrangement was made; or
- the proposed parentage orders are not in the child’s best interests.
Dobson Mitchell Allport’s family law team are proud and honoured to assist people to take the next step in creating their families. If you would like further information about Surrogacy Agreements, get in touch by email, telephone, or via the website.
