The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 279 • prevent gamete donors withdrawing consent to use gametes after the formation of the embryo; • provide for reimbursement of costs incurred by a surrogate mother’s partner; and • recognise the surrogate mother’s rights in relation to pregnancy and the birth of the child. The ARTA Act also adopts more gender inclusive language when referencing assisted reproductive treatment. It substitutes references to ‘men and women’ in the guiding principles of the Act with ‘individuals’. Surrogacy Altruistic surrogacy Altruistic surrogacy involves an unpaid volunteer surrogate (i.e. the birth mother) carrying a child for the intending parents. The surrogate may only be reimbursed for reasonable costs. In Australia, partial surrogacy, where the surrogate mother provides the egg, is illegal. A donor egg or an egg from the intending mother must be used. Generally, the sperm is from one of the intending parents. Altruistic surrogacy is generally used by gay men or by women who are unable to carry a child but who want to have a biological child. There is an assumption that the surrogate is the child’s legal parent. However, this can be rebutted by a substitute parentage order (s 19 SoC Act). Intending parents have six months to apply to the County Court or Supreme Court for a substitute parentage order. If approved (as is generally the case), the intending parents are named as the legal parents on the child’s birth certificate (ss 20, 21 SoC Act). This can include both males in a same-sex relationship. As of November 2014, all children born in Victoria through an altruistic surrogacy agreement in another state have their parentage legally recognised. Altruistic surrogacy must be approved by the Patient Review Panel (s 39 ART Act). This panel considers factors including the reasons for the surrogacy, the surrogate’s age and circumstances, and whether the people involved have received counselling and legal advice. For more information about the Patient Review Panel, see www.health.vic. gov.au/patient-care/assisted-reproduction. (See also the case of Lamb v Shaw [2017] FamCA 769. In this matter, the genetic mother’s third cousin agreed to act as a surrogate.) Commercial surrogacy Commercial surrogacy is where the intending parents pay a surrogate to carry a child, and payment results in a material benefit or advantage to the surrogate beyond the reimbursement of reasonable costs. Currently, it is illegal for intending parents to engage in commercial surrogacy in Australia with a surrogate (s 44 ART Act). In Victoria, it is not illegal for individuals and couples to travel overseas for the purpose of commercial surrogacy; however, this is illegal for residents of New South Wales, the Australian Capital Territory and Queensland. Australian legislation does not automatically recognise intending parents as the legal parents of the child, even if the surrogate has relinquished all rights to the child. Further, unlike in altruistic surrogacy agreements, intending parents in a commercial surrogacy arrangement are unable to apply for a substitute parentage order as these orders are only granted for children conceived in Victoria (s 20 SoC Act). Overseas birth certificates listing the intending parents as the legal parents are not recognised in Australia. It is possible for the donor father to apply for a declaration of parentage to become the child’s legal father, as was the case in Green-Wilson and Bishop [2014] FamCA 1031. However, it is unclear whether this continues to be the current position of the law. In the case of Bernieres and Dhopal [2017] FamCAFC 180, the Full Court of the Family Court of Australia refused to grant a declaration of parentage to the biological father of a child conceived through an international commercial surrogacy agreement. The court held that the FL Act (s 60HB) ‘covers the field’ in relation to children born under surrogacy agreements. It follows that section 60HB of the FL Act leaves it open to each state and territory to regulate the status of children born through surrogacy. A parentage order establishes the intending parents as the child’s legal parents. Consequently, the intending parents are granted all the rights and privileges of a regular parent. A parental responsibility order is one step below a parentage order. It confers on the intending parents the right to make parental decisions on behalf of the child. However, the intending parents are not recognised as the child’s legal parents. Consequently, once the child turns 18, there is no legal connection between the intending parents