Reproductive Health » Surrogacy

Legislation

Assisted Reproductive Technology Act 2007 NSW
Commercial Surrogacy is illegal in NSW.

Legislation on altruistic surrogacy in NSW (2009)
Legislative Council Standing Committee on Law and Justice Report

Surrogacy Act 2010 (NSW)
Commercial surrogacy is illegal. It an offence to engage in commercial surrogacy overseas (s11). Commercial surrogacy advertising is banned (s10). While commercial surrogacy is illegal payment for costs and expenses can be made and agreements relating to such expenses are enforceable (s 9(2)). Parenting orders can be made in the best interests of the child if certain requirements are met (Part 3).

Adoption Act 2000 (NSW), s 87(2)(a)
New South Wales allows for direct adoption applications when the adoptive parent is a ‘relative’ of the child. Adoption has been a method used to ‘transfer’ parenting for familial surrogacy.

Family Law Act 1975 (Cth)
The Family Court also has powers to make parenting orders with respect to parental responsibility for children.

Cases

Re Mark (2004) 31 Fam LR 162 Cth
Where two gay men requested that the Family Court declare that they were the parents of a child born through surrogacy (Mark). The application was granted. It was found that there were other ways for a child to ‘be the child of a man’, apart from those acknowledged in s 60H(3). In any case, both men were concerned with the child’s care, welfare and development, and had the rights to seek the application. It was in the child’s best interests to make the order.

Re Michael: Surrogacy Arrangements [2009] FamCA 691 Cth
The case involved a mother (Lauren) who acted as a surrogate for her daughter (Sharon). Only a ‘prescribed parent’ can apply for such leave. The matter was determined by s 60H(1). Only Lauren could apply for leave under s 60G. It was granted.

Collins & Tangtoi [2010] FamCA 878 Cth
A case involving a surrogacy arrangement that occurred in Thailand. The Australian biological father provided sperm, and a donor egg was used to implant in a Thai surrogate. The biological father was found to be a parent and his wife were granted a parenting order with the consent of the Thai mother.

Gough & Kaur [2012] FamCA 79 Cth
s 60H(1) was found to prevent an Australian man who supplied his sperm to a Thai surrogate from being considered a parent because he was not the husband or de facto partner of the surrogate mother. An order was still made but on the basis that the man and his wife were concerned with the child’s care, welfare and development.

Ellison & Karnchanit [2012] FamCA 602 Cth
The case concerned an application for parenting orders for twins from a man and woman who entered into a commercial surrogacy arrangement with a Thai woman. It was argued that the man’s sperm was used to fertilised donor eggs which were then implanted into the surrogate. In discussing s 60H, Ryan J disagreed with the decision in Gough & Kaur and instead decided to follow the Re Mark line of authority.

AP v RD [2011] NSWSC 1389 NSW
A surrogacy arrangement between sisters-in-law. The child born was genetically the child of the applicants. A parenting order was granted under s 12 of the Surrogacy Act 2010 (NSW) as the intended parents had complied with all the requirements

MM and KF [2012] NSWSC 445 NSW
Brereton J waived the non-mandatory requirements of a written contract, legal advice and counselling.

Papers, Reports and Books

Surrogacy: Reproduction or Empowerment?
(1989) Bioethics 3(1) 18-34
Author: Laura M. Purdy
Analyses the issue of surrogate mothering from a consequentialist standpoint. Looks at the possible empowerment that surrogacy may provide for women and greater recognition or reproductive labor.

The ethics of surrogacy: women’s reproductive labour
van Niekerk et al
Journal of Medical Ethics 21 (1995)

The Ethics of Surrogacy
Simon Longstaff
St James Ethics Centre

Multimedia

Surrogacy: the case for and against
ABC Radio National – 27 Jan 2011

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