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Surrogacy: yours, mine or ours?

A recent article on what it is like to carry someone elses child highlights the legal complexities that arise in relation to modern conception arrangements, such as surrogacy, which continue to require court determinations, particularly when concerning overseas surrogacy arrangements.

The Surrogacy Act 2011 provides that a commissioning couple to a surrogacy can apply for parenting rights to be transferred to them. Until such time that a legal determination is made, the child is deemed to be the child of the birth mother.

In February 2018 the Family Court heard a case[1] where a child was born by way of an international commercial surrogacy arrangement. An application was made by a couple seeking a parenting order for equal shared parental responsibility of the child and requested that the child live with them in Australia. There was no response from the biological mother in respect of the proceedings. The issue for the Court was to determine whether a parenting order should be made in favour of the couple.

Pursuant to a clause[2] in the Family Law Act, when making a parenting order the Court must consider the 'best interests of the child' as the paramount consideration.

The couple was able to demonstrate that they had a strong relationship, strong support from their family and a strong environment for their family to flourish in. They indicated there were already plans for future travel outside of Australia for the benefit of the child. The Court ultimately concluded that it was in the best interests of the child to live in Australia with them and ordered the Australian couple to have equal shared parental responsibility for the care, welfare and development of the child.

Surrogacy may have become a popular way for many couples in the limelight to have children, notably Kim and Kanye WestElton John as well as Sarah Jessica Parker and her husband Matthew Broderick. But it isn't just a service for the rich and famous. Surrogacy is used for all sorts of reasons and if you find yourself wanting to pursue this avenue, you should seek legal advice before embarking on surrogacy.

This article was written by Senior Associate Franca Parolin and co-authored by Law Cadet, Olivia Southall.



[1] Koutafides and Anor & Sausurre [2018] FamCa 90

[2] Section 60CA of the Family Law Act 1975

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