Family Law

Surrogacy and IVF

Surrogacy

There are two types of surrogacy arrangements. The first is a commercial surrogacy, where a payment or other benefit is exchanged for entering into the surrogacy arrangement. The birth mother is entitled to be reimbursed the costs of the pregnancy, and reimbursement alone will not constitute a commercial agreement.

A commercial surrogacy arrangement is illegal in Queensland, whether or not the arrangement is carried out in Queensland or elsewhere. The consequences for entering into an illegal commercial arrangement include a fine and imprisonment for up to three years.

If a child is born from a commercial surrogacy arrangement, then there is no mechanism for transferring parentage from the birth parent and her partner to the intended parents. The intended parents can however apply to the Family Court for parenting orders, but these do not transfer parentage.
The second is an altruistic arrangement. An altruistic arrangement occurs where there is no exchange of a benefit for entering into the arrangement. This type of arrangement is legal in Queensland.

Despite altruistic surrogacy arrangements being legal in Australia, the agreement is not enforceable. This is because the birth mother and her partner are considered the parents of the child, at law. This means that the birth mother cannot be forced to relinquish the child.

The birth mother does however have a right to recover her costs of the pregnancy if she does relinquish the child.

When a child is born from a surrogacy arrangement, and the birth mother agrees to relinquish the child, there is a legal process for transferring parentage from the birth mother and her partner to the intended parents. A parentage order should be applied for when the child is between 28 days and 6 months old.

There are many technical requirements for making a parentage order application, so legal advice should be sought from one of our experienced Cairns family lawyers.

IVF

IVF refers to the artificial insemination of a fertilised egg.

At law, there is a presumption that the partner to the woman who gives birth to a child through IVF, is the other parent to the child, unless that parent did not consent to the insemination procedure.

The sperm donor is not a parent of the child, unless they are also the spouse of the woman who gives birth to the child and they have consented to the procedure.

Meet the experts in
Surrogacy and IVF

Julie Hodge

Special Counsel

Julie is an experienced, skilful and dedicated family lawyer who has been assisting Australians and Australian families to resolve their separation and divorce issues since 2007. Julie has extensive experience acting in all manner of family law issues including parenting, de facto and matrimonial property and divorce matters, spousal maintenance, domestic violence, child support and child protection issues.

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Rochelle Ryan

Associate

Rochelle practices exclusively in Family Law. Rochelle has gained experience in all areas of the firm, including commercial litigation, wills and estates law, commercial law and property law before finding her passion in our family law department.

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