Family Law Surrogacy Arrangements

Another man who produced semen used in a fertilisation procedure of a woman has no rights or liabilities relating to a child born as a result of the pregnancy for which the semen was used.

Under section 60H(2) of FLA, where a child is born to a woman as a result of an artificial conception procedure, and under a prescribed law of Commonwealth or State the child is the child of the woman, then whether or not the child is biologically a child of the woman, the child is her child for the purposes of the FLA.

However, if an Order is made under State law that a child is the child of one or more persons or that each of one or more persons is a parent if a child, then for the purposes of FLA, the child is the child of each of those persons (refer section 60HB FLA).

Section 22 of the Status of Children Act (QLD) (SOCA) provides that the Court may make a parentage order for the transfer of parentage of a child to the person/s making the application for the order but only if it is satisfied of all matters set out in section 22 (2) of SOCA, including that the surrogacy arrangement is in writing signed by the birth mother, the birth mother’s spouse if any and the applicant/joint applicants and those persons as well as another birth parent (if any) consent to the making of the parentage order at the time of the hearing.

Under section 22 of SOCA, the Supreme Court may make the parentage order only if it is satisfied of all of the matters:

1. The proposed order will be for the wellbeing and in the best interests of, the child;
2. The child has resided with the applicant/joint applicant for at least 28 consecutive days before the date upon which the application is made and was residing with them when the application was made and is residing with them at the time of the hearing;
3. They were entitled to apply under section 21of SOCA;
4. There is evidence of a medical or social need for the surrogacy arrangement;
5. The surrogacy arrangement:
6. Was made after each of the surrogate, any spouse she may have and the applicant/s obtained counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implications;
7. Was made with the consent of the surrogate, any spouse she may have and the applicant/s;

• Was made before the child was conceived;

1. Is in writing and signed by the surrogate, her spouse (if any) and the applicant/s; and
2. Is not a commercial surrogacy arrangement;
3. The surrogate and any spouse she may have were at least 25 years when the surrogacy arrangement as made;
4. The applicant/s were at least 25 years when the surrogacy arrangement was made and are resident in Queensland;
5. The surrogate, her spouse if any and the applicant/s consent to the making of the parentage order at the time of the hearing;
6. A surrogacy guidance report under section 32 supports the making of the proposed order.