Legal Support for Surrogacy & Egg Donation

In Australia, commercial surrogacy (paid surrogacy) is prohibited (although reimbursement of the birth mother’s reasonable surrogacy costs is allowed). For this reason, intended parents in Australia will travel to the United States and other countries in order to grow their families through surrogacy.

In terms of eligibility, the domestic legislation is a fairly inclusive regime. IVF and donor conception are available in all jurisdictions. Surrogacy can be undertaken by same sex or heterosexual couples or singles in all states and territories save for Western Australia (which doesn't yet allow same sex couples to undertake surrogacy).

Australian surrogacy law information provided by Ben Sayer, Partner, Sawyer Jones law firm in Australia.

There are several benefits to undertaking surrogacy in the U.S, which include:

• Surrogacy is well regulated in most States and as an industry, generally viewed as espousing ethical or best practice principles
• Surrogates receive pre-conception counseling as well as support during the process, which is a positive to those Intended Parents who see their responsibility to the surrogate as important
• Surrogacy Agreements are legally enforceable (a significant contrast to the position in Australia)
• Agencies provide matching services for surrogates and donors which improve arrangement timelines
• Pre or post-birth orders result in Intended Parents being named on the child’s birth certificate
• Contact between the surrogate and intended parents is generally promoted

There are a few key milestones during your surrogacy and egg donation journey during which you'll require the services of a lawyer who is experienced in surrogacy and Assisted Reproductive Technology (ART) law.

Carrier Agreement (Contract).
The Carrier Agreement is the legal contract between the gestational carrier and the intended parent(s). The agreement will lay out each party’s rights and responsibilities. It should carefully outline the surrogate’s responsibilities to the intended parents, such as attending all required medical appointments, maintaining a healthy lifestyle during the pregnancy, and maintaining contact with the intended parents. The surrogacy agreement will also ensure the gestational carrier relinquishes her claim to parental rights over the child following the child’s birth.

The surrogacy agreement will also detail the intended parents’ responsibilities to the surrogate, outline their financial obligations and carefully list all the expenses they must cover throughout the surrogacy. The surrogacy agreement must also outline all potential risks and liabilities and describe each party’s responsibilities should certain contingencies occur, such as a caesarian section or miscarriage. It is essential that all parties involved in a surrogacy agreement ensure the agreement adheres to their state’s surrogacy laws. It is also important that all parties utilize competent attorneys in the drafting and negotiating of the agreement.

Egg Donor Agreement.
Similar to the Carrier agreement, the Egg Donor Agreement is put in place to protect all parties involved in the egg donation arrangement, state the intended parents’ and donor’s intentions and legal obligations, and dissolve the donor’s custody over the baby born through the process. The egg donor agreement gives intended parents control of all eggs retrieved from the donor as well as any resulting embryos. It also outlines the need for purchasing medical insurance to cover the egg donor for any complications that may arise, as well as all travel-related expenses.

The agreement also addresses future contact between the IPs and egg donor, which depends largely on whether it’s a known donation, semi-known donation, or anonymous donation. The egg donor agreement also includes a clause requiring the egg donor to provide updated medical information if her health history changes. Intended parents should work with an experienced lawyer when negotiating their Egg Donor Agreement.

Establishing Parental Rights.
The most pressing legal issue facing any intended parent is the enforceability of the surrogacy agreement between the intended parents and the surrogate and the establishment of the Intended Parents’ parentage rights. It is important that all parties work with experienced attorneys with knowledge of the requirements in the jurisdiction where the parentage legal work will occur when drafting and negotiating their contracts so that their contracts will be upheld throughout their surrogacy and that proper parentage rights will be granted and birth certificates will reflect proper parentage. It is necessary to draw up a legally binding and thorough surrogacy contract, but it ultimately comes down to the state to enforce the contract and provide the official documentation that establishes the parental rights of the intended parents.

At Circle Surrogacy, every intended parent has a lawyer on their Journey Coordination team who will assist them in establishing their parental rights to their baby(ies).

The Pre-Birth Order.
The Pre-birth order is a court order establishing the Intended Parents’ parentage of their baby being carried by their surrogate, and is one of the most important documents of the entire surrogacy process. This document ensures that the intended parents are the sole parents of the child immediately upon birth. Each state has its own set of requirements (either in statutes or case law) necessary to establish the intended parents’ rights through the court proceeding. In general, it’s best to start the parentage process as early as possible after confirmation of pregnancy so that the court order is in place prior to birth.

The Post-Birth Order.
Similar to the Pre-Birth Order, this court order establishes the Intended Parent's parentage of their baby being carried by the surrogate. A Post-Birth Order is needed for certain states where the non-biological parent is added to the birth certificate after the baby's birth.

Second Parent Adoption.
In some cases, the intended parents will need to complete an adoption process to attain full legal parental rights over the child. Most situations that require adoption typically involve intended parents where one parent is not biologically related to the child. In those cases, the non-biological parent is adopting his/her spouse’s biological child. It is usually a simpler more stream-lined process than a full-scale adoption.

Establishing Parentage in Australia

It would be reasonable to assume as an Intended Parent that you will be recognized as the 'parent' of your child upon your return to Australia, particularly if you are named on the birth certificate of your child and have an overseas order.

However, there is no automatic recognition of U.S pre-birth or post-birth orders.

The reason for this is that when determining parental status, Courts will apply Australian law, even to children born through international arrangements. All jurisdictions here have legislation which define the parentage of children born through assisted reproduction (including surrogacy).

The effect of the presumptions are that Intended Parents won’t automatically be recognized as parents of their children for the purposes of the Family Law Act. This is understandably concerning for Intended Parents and it is important that you are aware of this legislative issue.

Some intended parents elect to take additional steps upon their return to Australia to address their status in relation to their children, which can include:

• Careful estate planning
• Registration of overseas orders in Australia (where eligible)
• Obtaining parenting orders under the Family Law Act

Additionally, the practical reality is this issue hasn’t prevented Intended Parents from Australia being able to undertake international surrogacy or preclude them from accessing important entitlements or services, including their child becoming an Australian citizen, obtaining passports and enjoying the benefits available through Medicare.