New surrogacy laws came into effect in Queensland on 1 June 2010 - Surrogacy Act 2010 (Qld) ("the Act"). Under the Act it is now legal for altruistic surrogacy arrangements (that is, non-commercial arrangements) to be made in Queensland. The Act also enables the court to transfer the parentage of a child born as a result of a surrogacy arrangement. The new laws apply to everyone regardless of gender, relationship status or sexuality.

Prior to 1 June 2010, surrogacy was prohibited in Queensland regardless of whether any arrangement was formal or informal, and whether or not it was for payment or reward. Entering into such an arrangement was punishable by a fine or 3 years imprisonment.

Commercial surrogacy arrangements remain illegal. These are arrangements where a party receives a payment, reward or other material benefit or advantage for: agreeing to enter into the arrangement; relinquishing custody or guardianship; or consenting to a parenting order.

What is a surrogacy arrangement?

A surrogacy arrangement is an arrangement between a woman and another person/s under which the woman agrees to try to become pregnant with the intention that:

• the child is to be treated as the child of the other person/s and not the woman;
• the woman will relinquish custody and guardianship of the child; and
• the other person/s agree to become permanently responsible for custody and guardianship of the child.

To enter into a surrogacy arrangement all parties must be at least 25 years of age, and the intending parents must also be resident in Queensland. The surrogacy arrangement needs to be made before the child is conceived, and after all parties have obtained independent legal advice about the arrangement and its implications; and counselling about the arrangement and its social and psychological implications. The arrangement must be in writing, signed by all parties and made with the consent of all parties.

There are additional requirements which must be satisfied to obtain a court order that transfers the legal parentage of the child from the birth mother to the intended parents (known as a "parenting order").

Who can enter into a surrogacy arrangement?

Any person, regardless of his or her relationship status, will be able to enter into a surrogacy arrangement. Intended parents may be a married or a de facto couple (including same-sex de facto couples) or a single person. The birth mother (the woman who carries the child) has control over her pregnancy and can choose any of the various methods available for conception.

Is a surrogacy arrangement enforceable?

A surrogacy arrangement is not enforceable. This means that the birth mother or the intended parents may change their minds at any time before the court makes an order to transfer the parenting of the child to the intended parents. This makes the arrangement inherently risky as there can be no guarantees that either party will not change his/her mind. If this is the case then the ordinary laws relating to the parentage of children apply.

Despite this, an obligation to reimburse the birth mother's surrogacy costs is enforceable unless a child is born and the birth mother either doesn't relinquish custody and guardianship, or doesn't consent to the making of a parenting order.

What is involved in getting a parenting order?

The Surrogacy Act imposes many requirements on parties who wish to obtain a parenting order following a surrogacy arrangement. The court may not make a parenting order unless these requirements have been satisfied.

To make an application for a parenting order the intending parents will need to show:

that the child resided with them for at least 28 days before the application was made; on the day the application was made; and at the time of the hearing;

• that the surrogacy arrangement complies with the law;
• that there is evidence of a medical or social need for the arrangement;
• that the intending parents are resident in Queensland;
• that all parties consent to the making of the parenting order at the time of the hearing;
• that the intending parents have obtained a surrogacy guidance report which supports the making of the order;
• that all children born of the same pregnancy are also in the parenting order.

Particular documents need to accompany the application including a copy of the child's birth certificate; a copy of the surrogacy arrangement and sworn statements by all parties to the arrangement, including the lawyers and appropriately qualified counsellors, addressing particular matters set out in the Act.

Until a transfer of parenting order is made the birth mother is presumed to be the mother of the baby and her partner (if any) is presumed to be the father. Where the birth mother has a female partner, and the baby was conceived via an assisted reproduction technology, the female partner is presumed to be the parent of the child. The making of a parenting order will override this parenting presumption.

What is a medical or social need?

The court must be satisfied that the intended parents have a medical or social need before making a parenting order. A medical or social need occurs if the intended parents are: a man and an eligible woman; both men or both eligible women; or the sole intended parent is a man or an eligible woman.

An eligible woman is a woman who is unable to become pregnant or is unable to carry a pregnancy or give birth. It also includes the situation where, if the woman did conceive a child: the child would be affected by a genetic condition or disorder or the child's health or life would be at risk by the pregnancy or birth. An eligible woman also covers the situation where the woman, if she did conceive a child, is unlikely to survive the pregnancy or birth or her health would be significantly affected.

Principles of the Act

As with Family Law, the Act is to be administered according to the principle that the wellbeing and best interests of the child, both through childhood and for the rest of his or her life, are paramount. Further principles provide for the administration of the Act in such a way that:

• ensures a safe, stable and nurturing family and home life for the child;
• promotes openness and honesty about the child's birth parenting;
• promotes the development of the child's emotional, mental, physical and social wellbeing;
• promotes the long-term health and wellbeing or parties to a surrogacy arrangement; and
• respects the autonomy of consenting adults in their private lives.

More Information

For more information please see the Department of Justice and Attorney's website at: http://www.justice.qld.gov.au/justice-services/births-deaths-and-marriages/surrogacy