The Full Court of the Family Court of Australia recently handed down a decision regarding a couple who were seeking to become the legal parents of their child, who was born overseas under a commercial surrogacy arrangement.
Surrogacy in Australia
Currently in Australia, each state and territory has its own legislation with regard to surrogacy. Whilst the general position is that commercial surrogacy is illegal, altruistic surrogacy (where no commercial payment is received) is permitted.
There are several barriers to a surrogacy arrangement in Australia. For example, in order to participate in a surrogacy arrangement in Victoria, the surrogate needs to be at least 25 years old, must have previously given birth to a “live” child, and must not have any genetic link to the child the subject of the arrangement. Prospective parents are otherwise prohibited from advertising for a surrogate, and because of this, couples often look for potential surrogates in their own family and friendship groups. Further, the surrogate must not receive any reward or payment, other than payment to cover medical, birth and associated pregnancy expenses.
Because of the difficulties faced in surrogacy arrangements in Australia, many couples choose to travel overseas to countries which can facilitate a commercial surrogacy arrangement, such as Los Angeles in the United States, and the Ukraine. It is estimated that each year approximately 250 children are born to Australian couples via overseas commercial surrogacy arrangements.
It can be a relatively seamless (albeit expensive) process, with overseas agencies facilitating the appointment of a surrogate, and assisting with arrangements for the birth of the child. However, depending on the country in which the child is born, difficulties may arise when couples attempt to return to Australia with their child, and seek to be recognised as the legal parent.
Summary of the case
In this particular case, the intended father was the biological parent of the child. The intended mother had no genetic link to the child, as the process utilised a donated ovum.
The couple returned to Australia from overseas with their little girl, now 3 years of age, and sought to be recognised as her legal parents.
The Court held that the couple were not the child’s legal parents, despite the intended father being her biological father. This is because the Victorian legislation did not recognise parents born of commercial surrogacy arrangements. The position is similar under other state and territory legislation.
The Court said:
“There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Further, the mother is not even the biological mother, and thus is even less likely to be the ‘legal parent’.”
Significance of the judgement
This is the first time that the Full Court of the Family Court has ruled in relation to an overseas commercial surrogacy arrangement, and in doing so, the three Judges said that it was not the role of the court to fill the "legislative vacuum" for such arrangements.
Clearly this decision should sound an urgent clarion call for changes to be made to the legislation.
The parents were able to obtain orders for "parental responsibility" for the child, which enables them to make all long term and day to day decisions for the child, however, the legal parents will remain the surrogate and her partner. The only other option available to the parents was for them to seek to adopt the child, however this in itself would be a difficult process.
Our Family & Relationship Law team specialises in the area of surrogacy. If you require any information or advice on this issue, please contact us.