Surrogacy – New South Wales

In New South Wales, surrogacy is governed by the Surrogacy Act 2010 (NSW). Surrogacy agreements may be made either before a child is conceived (Pre-conception Agreements) or after child has been conceived (Post-conception Agreements). A Surrogacy Agreement is in effect an agreement between the woman giving birth to a child and the male donor of the genetic material that the dome of the genetic material is not the intended parent and that some other person is the intended parent.

Importantly, under New South Wales law a Surrogacy Agreement is not enforceable. Despite this, there is an obligation under a Surrogacy Agreement to pay or reimburse the birth mother’s surrogacy costs but only on the basis that such an agreement is made prior to the conception of the child and forms part of a Pre-Conception Surrogacy Agreement.

Under the New South Wales Surrogacy Act, the intended parents may seek orders in the Supreme Court of New South Wales for a parentage order. It is important that parties consider that there are a number of important preconditions which will need to be met prior to making such an application.

Such considerations and preconditions are broadly speaking, that the orders sign the child’s best interests, that the surrogacy itself was altruistic, and was done prior to the conception of the child (i.e. that the Surrogacy Agreement was a Pre-Conception Surrogacy Agreement).

Other requirements involve consent, mandatory counselling, independent legal advice and the provision of a report by an independent counsellor. Subject to fulfilling these preconditions, a parentage order may be made in the Supreme Court which in effect alters the child’s birth certificate naming the father as the intended parent rather than the person who provided the genetic material.

Despite the procedure above, the Family Law Act, which is a Commonwealth Act, contains provisions which establish a presumption of parentage. There are five rebuttable presumptions contained in the Family Law Act which presumed that the husband or de facto partner of a birth mother is the father of the child:

  1. a child born during the marriage within 44 weeks of separation death of a husband;
  2. a child born of a defector relationship that began not earlier than 44 weeks after the birth of the child or 20 weeks after the birth of the child;
  3. by registration of birth;
  4. a court finding;
  5. an acknowledgement of paternity.