The two men, who cannot be named for legal reasons, were in a committed relationship for 12 years before having a child through an altruistic surrogacy arrangement in 2009. However, they were not recognised as the legal parents of the child, denying them the freedom to exercise parental right on the child’s upbringing on issues such as school enrolments or medical decisions.
The ruling, which was handed down in June, allowed the family to assume legal parentage of the child and change the child’s surname, as well as having these arrangements recognised by government departments.
Slater & Gordon family lawyer Kim Healy, who represented the couple, said it was in the “child’s best interest” to have two parents legally able to make decisions on the child’s welfare and development.
“The right to make medical decisions for your child or apply for their passport can seem like small things, until you are not able to do them. For the family I represented the legal acknowledgement of their role was deeply significant on both a practical and symbolic level,” Healy said.
Surrogacy laws in Australia are relatively new and untested and vary widely between state and territory jurisdictions, although commercial surrogacy is illegal in every state that has legislated on the issue. Tasmania only legalised surrogacy in any form in 2012 legislation that has not yet come into effect, and the Northern Territory has no legal arrangements at all.
The case has the potential to break new ground for NSW LGBTI couples seeking to enter surrogacy arrangements. Until the passing of the Surrogacy Act 2010, surrogacy arrangements in NSW were governed by the Status of Children Act 1996, which undercut surrogacy agreements by recognising a child’s birth mother and her partner as the legal parents.
While the two men’s surrogacy arrangement was altruistic it would be illegal under current NSW law, which prohibits international surrogacy arrangements as of 2011.
Healy will elaborate on the case in next week’s Star Observer.