A couple of years ago there was a documentary on SBS about two gay men from Melbourne who had a baby through a surrogacy arrangement in the US.
It caused a big splash, but there hasn’t been that much information on surrogacy within Australia since then, even though the ACT has recently changed its laws to make surrogacy simpler (and specifically identified gay couples as eligible) and Victoria is currently considering surrogacy reforms.
This article outlines some of the general issues for gay men considering parenthood through surrogacy, but anyone considering a surrogacy arrangement should get detailed legal advice on their plans before they begin.
The first thing to note is that surrogacy arrangements are just that -“ arrangements, not contracts. It is not possible to enter into a binding surrogacy agreement anywhere in Australia, or to enforce an agreement that has broken down.
Any dispute about the child will be determined by the child’s best interests, not by the terms of an agreement.
Most Australian states prohibit payment for surrogacy (commercial surrogacy), advertising for a surrogate or facilitating a surrogacy agreement (e.g. through an agency).
Even the ACT, which allows non-commercial surrogacy and has groundbreaking new laws allowing for parental status to be transferred from the birth mother to the commissioning parents, bans any form of advertising for a surrogacy arrangement.
So in most of Australia, surrogacy arrangements have to be privately arranged and involve no fee or payment (although in some places the cost of medical expenses is allowed).
NSW is unusual because it does not currently have legislation on surrogacy. At the moment it is not illegal to advertise for or enter into either a commercial or non-commercial surrogacy agreement that takes place in NSW -“ but note that advertising in other states, or conceiving elsewhere, or even having an agreement with a surrogate who usually lives in another state, may still be an offence in those places.
Since 2003 the NSW government has had a law in draft form (the Assisted Reproductive Technology Bill 2003) but it is not clear if it will be introduced.
Even if this bill did become law, it would only prohibit commercial surrogacy and advertising for commercial surrogacy in NSW. Non-commercial agreements would remain legal in NSW, as would advertising for them.
This means that NSW is the most permissive of all Australian jurisdictions, and is likely to remain so even if the law changes.
Surrogacy may take place with the birth mother’s own egg (sometimes called partial surrogacy) or with a donor egg so that the birth mother is not the genetic mother (full surrogacy). Either way, the birth mother is still a legal mother.
If the conception is going to take place with a donor egg, then IVF is needed. This means two hurdles: finding an accessible fertility service, and a woman who will donate an egg in addition to finding a woman who will be a surrogate.
It is prohibited in all Australian states to pay an egg donor, although it is acceptable to cover medical expenses. It is legal to advertise for an egg donor in NSW (although note again it is an offence in some other states).
In most states, it is not possible to use fertility services to undertake a surrogacy arrangement, either because surrogacy is banned or because the law allows access to fertility services only on the basis of clinical infertility (meaning the birth mother would need to have a fertility problem, defeating the purpose).
The exceptions once again are the ACT and NSW, where it may be possible to access privately run fertility services even if not clinically infertile.
But if classified as fertile, the parties would be ineligible for Medicare benefits -“ meaning that the cost per IVF cycle would be around $10,000. (If the birth mother were to be the genetic mother and a fertility service was only used for donor insemination rather than IVF the cost would be around $1,800 per cycle.)
All states still require a sperm donor to sign a lifestyle declaration. Declaring that you have had male-male sex in the past five years may mean that the service refuses to use your sperm, or that they require additional storage time and repeat testing. This is up to the clinical judgment of each service, so is unpredictable.
Once a child is born, there is the further issue of parental status. Legally, the parents of any child born through assisted conception, whether surrogacy or otherwise, are the birth mother and her partner (in the ACT this includes a female partner). A commissioning parent, even if a biological father, is not a legal parent.
In the ACT the new surrogacy provisions allow for birth parent and commissioning parents to apply to the ACT Supreme Court for a change of parental status from the birth parents to the commissioning parents.
These provisions can be used by gay men, but only if: the commissioning parents live in the ACT, the child was conceived through IVF carried out in the ACT, the birth mother is not the genetic mother (i.e. full surrogacy and not partial surrogacy), at least one of the commissioning parents is a genetic parent, the birth mother and her partner both consent, and the baby is between six weeks and six months at the time of the application.
So far the ACT is the only jurisdiction in Australia to introduce such provisions, but Victoria is considering something similar.
It is not possible to use adoption orders in NSW to gain parental status, because privately arranged adoptions are not permitted, and in any case same-sex couples are not eligible to jointly adopt.
But a lack of automatic parental status does not mean that commissioning parents have no rights or no way of gaining parental rights.
Any person concerned with the care, welfare and development of a child can apply to the Family Court for orders; they do not need to be a legal or biological parent. It is possible for commissioning parents to apply to the Family Court for parental responsibility orders (these grant the right to make major decisions about the child, such as medical care, applying for a passport and so on) and for residence or contact orders.
It is not exactly the same as parental status, for example it doesn’t flow through to areas such as inheritance, but it does say who is the person or people responsible for the care of the child and in charge of what happens to them until they turn 18. Such orders can also remove parental responsibility from the birth mother and her partner. Such orders can be applied for with the consent of all parties in a relatively simple process.
The Family Court has made these orders in favour of gay men in recent years, including men who had a child from surrogacy arrangements made overseas. Importantly, these orders granted equal rights to the biological and non-biological father in a gay couple.
The upshot: surrogacy in Australia is very difficult and widely prohibited. The ACT and NSW are the most conducive to surrogacy arrangements, but prospective commissioning parents need considerable resources, would need to be very careful not to break the laws of their own and other states, and should consider obtaining parenting orders shortly after birth to formalise their legal status.
Jenni Millbank is associate professor of Law at the University of Sydney and special advisor to Watts McCray Family Lawyers. If you need legal advice you can call Watts McCray on 9635 4266 and speak to Lorraine to make an appointment.