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Surrogacy is where a woman carries and births a child for another couple or person.

Entering a surrogacy arrangement to bring your child into the world, or becoming a surrogate must be carefully considered emotionally and legally. Surrogacy on a fee paid basis is illegal in all states of Australia, however surrogacy agreements can be entered into on an altruistic basis whereby the surrogate mother can be reimbursed for expenses connected with the pregnancy and birth. The laws regarding surrogacy are different state to state and our Family Lawyers at Salerno Law can advise you about the laws that relate to you in your state.

Regardless of who are the biological parents, the surrogate and her husband or partner are recognised as the parents of the child until such time as the Supreme Court orders otherwise. The proposed parents must make an application for a parentage order to become the child’s parents.

For a parentage order to be made there must have been a written agreement in place prior to the surrogacy. Our Family Lawyers at Salerno Law can advise you and prepare a Surrogacy Agreement. It is an exciting and emotional time for prospective parents and surrogates when altruistic offers are made, and arrangements are discussed. It is important that prospective parents and surrogates obtain legal advice prior to entering into surrogacy agreements and consider all potential impacts and legal processes required from pre pregnancy, through to birth and parentage.

Call our office at Salerno Law to make an appointment to discuss surrogacy with one of our Family Lawyers.

What if our Surrogate changes her mind about handing over our baby?

As the biological parents of the baby, you are regarded as the intended parents and not the parents at law. At Salerno Law our Family Lawyers can negotiate on your behalf to try to resolve the matter, however a court application challenging parentage may be required if the surrogate maintains her position.

The best interest of the child is a legal framework which the court uses under the Family Law Act to make decisions/orders about the parenting of a child.  A surrogacy agreement is not enforceable by a court however it will assist the court to understand the intention that the parties had regarding the arrangement for the child after the birth. Therefore, your surrogacy agreement can be used as evidence in your matter.

I have been asked to be a sperm donor, am I a parent if I am the donor?

No, donor parents are not considered to be the parent of the child under the Family Law Act where the child is conceived by artificial insemination. This contrasts with a situation where a single woman conceives naturally with someone she is not in a relationship with, this person is the lawful parent. The law of parentage does not follow genetics.

Just as families now often differ from the traditional model, many couples, singles and donors are now considering and undertaking various kinds of donor and surrogate arrangements that suit their situation, family and friend relationships. Intended parents, surrogates and donors can agree on intentions and plans for parenting post birth, the level of involvement by parties and the information that will be provided to the child. This can be frustrated and lead to legal proceedings when situations, relationships and arrangements change over time. It is not unusual for people’s exact memories of agreements and intentions to fade or change as time passes.

Family structure and situations can also change over time. For example, a sperm donor who has been involved in the life of the child may object to the parents moving away with the child. In these cases, the sperm donor can apply to the court for an injunction stopping the move and a parenting order. These issues can be discussed and dealt with ahead of time and prior to the pregnancy if legal advice is sought early.

Prospective donors and parents may enter into donor agreements which can clarify the terms of the arrangements between parties prior to the donation. These agreements can be provided to assist the court and used as evidence if future issues arise as to parenting. Additionally, donor information is recorded when the birth is registered, and your donor agreement is filed with the birth registration.

Our Family Lawyers at Salerno Law will provide you with advice and guide you through your role as donor, surrogate or intended parents of a surrogate birth.

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