Transfer of legal parentage and changing of birth certificates are available 4-6 months post birth if uncompensated surrogacy used domestically
This process replaces the names of the surrogate and her partner with those of the intended parents on the birth certificate. Such orders may make it easier for parents through surrogacy to enrol their child in school and make decisions about their health care. They are accessed through the Family Court.
Legal Parentage is not currently available for those who engage overseas given the Family Law Act currently has no provision to grant this. Some cases were granted parental orders up until 2017, when the High Court ruled this could no longer be done. Instead the surrogate (and her partner) are deemed legal parents. Fortunately this has no adverse consequences in day-to-day life. However parents via international surrogacy must make wills specifying their child(ren) by surrogacy by name, to overcome any possible future issues with inheritances.
In WA, is is still possible to apply for ‘Parenting Orders following the birth as WA has its own Family Law Act. This process may cost $2000 or more and not many parents engage in it. Such orders transfer parenting responsibility, custody and guardianship of the child from the surrogate (and her partner) to the commissioning parents. Such orders ensure children born of surrogacy arrangements have access to a range of rights such as eligibility for compensation arising from their parents’ death or injury.
In 2017 in the decision of Bernieres and Anor & Dhopal, the Full Court of the Family Court held that the parentage of children born of surrogacy arrangements entered into overseas or in Australia is a ‘state matter’ and cannot be resolved within the present Family Law Act 1975 (Cth) The result of this decision is that the legal parentage of children of overseas surrogacy arrangements remain in doubt. If this upsets you, write to your local Federal member to ensure the current review of the Family Law Act fixes this issue
To protect your child(ren)s inheritance and other rights in the case of your death or injury, you should seek to make specific instructions in your will and insurance documents.
Do I need to engage an Australian lawyer for international surrogacy?
If you have read and understand the information above then, no. Overseas surrogacy contracts and overseas parental orders are not recognised under Australian law. All an Australian lawyer can do is inform you of the above information. Some US and Canadian lawyers will insist you engage an Australian lawyer, as they are ill-informed of Australian practice. If so, shop around, as a few well-known lawyers will charge you huge amounts for the advice above. Contact us on [email protected] if you require an Australian lawyer recommendation
Some US states do not allow the non-biological intending parent to appear on the birth certificate (eg Illinois & Ohio).
Australian law in this area requires a notice to be served on the birth mother unless she has already signed the necessary paperwork (at time of birth or contract signing). She has to sign that she has received the notice.
Where there is a non-biological father (as with a same-sex couple) who wants to gain parenting orders, the notice may be served upon the biological father by the non-bio dad.