Surrogacy & Family Law

Late last year, Shaun Resnik was the first single Victorian man to be given official approval to have a child via a surrogate, leading the way for single men state-wide. Surrogacy is a daunting and unknown area of which it can equally difficult to understand.

Surrogacy 

When a woman carrying a child to full term on behalf of the intended parent/s – is a complex and highly regulated process in Victoria and one that differs from state to state. It is not a process that is open to simply anyone – if you are wanting to have a baby using a surrogate, you must meet certain criteria in order to qualify and surrogacy arrangements need to be approved by the Department of Heath prior to the birth of the child. Similarly, you also need to meet certain criteria if you are wanting to act as a surrogate and carry a baby for someone else.

The Process

In order for a surrogacy arrangement to be approved by the Department of Health, there is a specific process that all parties, including the surrogate, must follow. This process can involve medical assessments, counselling, independent legal advice and psychological assessments although the exact process will depend on which state you live in.

Rules & Regulations 

There are also rules and regulations about what is to happen during the pregnancy. For example, whilst commercial surrogacy is illegal in Victoria (that is, you are not allowed to “pay” a surrogate for carrying your baby), you are required to cover certain costs in relation to the pregnancy and birth.

If the required process is followed correctly, the intended parents are able to apply to the Court for a parenting order to transfer parentage from the birth parents (the surrogate and their partner) to the intended parents. This can be done by way of an application to the Court or by way of a Consent Order. Once an order for parentage has been obtained, the child’s birth certificate is reissued with the new parents’ names listed.

Surrogacy is not, however, legally enforceable and if the required process has not been followed, the intended parents will face difficulties when seeking to have the child’s parentage transferred. Similarly, there is no legal obligation on either the intended parents to accept the baby or the surrogate to relinquish it. The surrogate can, however, enforce the intended parents’ obligations regarding payment of the costs associated with the pregnancy.

At Umbrella Family Law we are well versed in the requirements for surrogacy arrangements both in Victoria and interstate so if you are thinking surrogacy may be an option for you, let us guide you through the process. Contact us via phone (03) 9279 6800, or email theteam@umbrellafamilylaw.com.au.