Surrogacy: Yours, Mine or Ours?
Surrogacy can be a way for couples who cannot conceive a child naturally or through IVF to become parents. In general terms surrogacy means an arrangement under which a women agrees to become or try to become pregnant with a child, with the parentage of that child transferred to another person or persons.
Surrogacy arrangements involve complex legal, emotional and social issues. In Australia, commercial surrogacy is illegal while some states, including NSW, have made it illegal for residents to enter commercial surrogacy arrangements overseas.
In NSW, altruistic surrogacy or non-commercial surrogacy (where the surrogate mother does not gain financially from the arrangement) is legal under the Surrogacy Act 2010.
Under the Act intended parents can gain full parenting rights and their name on the child's birth certificate without having to adopt the child, by applying for a parentage order 30 days after the birth of the child.
Certain criteria must be met for the order including: the surrogacy being altruistic, the birth mother being at least 25 years of age, all parties receiving legal advice and counselling and giving informed consent, and the child living with the intended parents at the time of the application.
Prior to the Surrogacy Act, the birth mother of the child was the legal parent and the intended parents were required to adopt the child - a lengthy and costly process.
The complexities associated with surrogacy and particularly issues with international commercial surrogacy were demonstrated in the Baby Gammy case. In 2013 Baby Gammy and his twin sister were born in Thailand, to a Thai surrogate mother, using a Western Australian man's sperm and donor eggs after the man and his wife were unable to conceive a baby.
Baby Gammy has Down syndrome and has stayed in Thailand with his surrogate mother whilst his twin sister has come to Australia to live with her intended parents. Whilst initial media reports inferred that the intended parents had abandoned Baby Gammy, in 2016 the WA Family Court ruled that the intended parents did not abandon Gammy and that they had actually wanted to keep him. The surrogate mother had also wanted to keep Baby Gammy and the WA couple were unable to return to Australia with both children.
In 2015 Thailand enacted new laws which have banned foreigners from accessing commercial surrogacy arrangements.