Surrogacy is a compassionate and life-changing journey for many individuals and couples who desire to become parents but face medical or social challenges. Surrogacy is a complex legal process governed by specific laws that safeguard the interests of all parties involved. This article aims to provide prospective parents seeking legal advice on surrogacy with a comprehensive overview of the laws in NSW.

What is surrogacy?

Surrogacy is an arrangement where a woman (the surrogate) carries and gives birth to a child on behalf of another person or couple (the intended parents). This arrangement may be either altruistic, where no financial compensation is involved, or commercial, where the surrogate receives compensation for her services.

What is the law in NSW?

In NSW, surrogacy is regulated by the Surrogacy Act 2010 (NSW), which sets out the legal procedures and requirements for altruistic surrogacy arrangements while prohibiting commercial surrogacy arrangements. The Act aims to ensure the welfare of the child, the surrogate, and the intended parents throughout the process.

Who can engage in surrogacy?

To be eligible for surrogacy in NSW, intended parents must meet specific criteria, including but not limited to:

1. Demonstrating medical or social infertility.
2. Being at least 18 years old.
3. Being residents of NSW.
4. Providing full consent and understanding of the surrogacy process.

Types of Surrogacy Arrangements

There are two types of surrogacy arrangements;

1. Altruistic Surrogacy: This is the most common type of surrogacy in Australia, where the surrogate receives no financial reward other than the reimbursement of reasonable expenses directly related to the surrogacy.
2. Commercial Surrogacy: Commercial surrogacy is prohibited in NSW. Engaging in commercial surrogacy may lead to severe penalties, including imprisonment.

The Surrogacy Process

The surrogacy process in NSW involves several crucial steps, each requiring legal documentation and medical assessments. These steps typically include:

1. Screening and Counselling: All parties involved must undergo independent psychological assessments and counselling to ensure they understand the implications of the surrogacy arrangement.
2. Legal Agreements: Intended parents and the surrogate must enter into a legal surrogacy agreement that outlines the rights, responsibilities, and expectations of each party.
3. Parentage Order: After the child’s birth, intended parents can apply for a Parentage Order, which transfers legal parentage from the surrogate to them. This process grants parental rights and responsibilities, including the child’s citizenship and inheritance rights.
4. Birth Certificate: Following the Parentage Order, a new birth certificate will be issued with the names of the intended parents listed as the legal parents.

Challenges and Considerations

Prospective parents must be aware of the potential challenges and complexities that may arise during the surrogacy process. These may include:

1. Medical Risks: Surrogacy involves medical procedures and potential health risks, which all parties must consider and discuss with medical professionals.
2. Emotional Impact: Surrogacy can be emotionally intense for all involved, requiring open communication and support.

Conclusion

Navigating the surrogacy laws in NSW requires careful consideration, understanding, and adherence to legal procedures. Prospective parents seeking to pursue surrogacy should consult legal experts with expertise in family and reproductive law to ensure a smooth and legally compliant journey. Remember, the ultimate goal of surrogacy is to create loving families while prioritising the well-being of the child, the surrogate, and the intended parents.

We are always happy to assist families in beginning this process and you can contact us for a no-obligation 15 minute consultation at (02) 8379 1892 or by email at info@barkerevans.com.au.