Wiltshire News

Tuesday, 11 October 2011

With many couples in Queensland struggling to conceive a child, people often find themselves considering other options to start a family.

One of those options may be a surrogacy arrangement, whereby a third party agrees to be impregnated with a child for another couple.

The Queensland Government enacted the Surrogacy Act 2010 (Qld) in mid-2010 which changed the laws in relation to surrogacy arrangements.

In particular, the Act made it legal for Queensland residents to enter into altruistic (“unselfish”) surrogacy arrangements, whilst commercial surrogacy arrangements remain illegal.

Commercial surrogacy arrangements occur when there is a payment, reward or any material benefit to any of the parties entering into the arrangement. It should, however, be noted that the payment or reimbursement of the birth mother’s reasonable expenses associated with an altruistic surrogacy agreement are permissible under the Act.

On 30 June 2011 the Honourable Justice Watts handed down a number of decisions involving surrogacy arrangements. In particular, the case of Dudley and Anor & Chedi [2011] FamCA 502 encapsulated the current laws in Queensland.

The facts of that case were as follows:

• The applicants were Mr and Mrs Dudley.

• Mr Dudley was born in New Zealand but was an Australian citizen. Mrs Dudley was born in Thailand but was a permanent resident in Australia. The couple resided in Queensland.

• Mr and Mrs Dudley were unable to conceive a child and therefore resorted to commercial surrogacy arrangements in Thailand.

• The arrangements consisted of a Thai woman donating eggs which were fertilised using Mr Dudley’s sperm. Those eggs were implanted in two other Thai women.

• Three children were born as a result of the surrogacy arrangements. This case dealt with the twins born from one of the Thai birth mothers, whilst the third child was dealt with in a separate case.

• The birth mothers of all three children had clearly relinquished their rights and obligations in relation to the children.

• Mr and Mrs Dudley applied to the Family Court for orders that the children live with them. However, they did not seek parentage orders to confirm they were the parents of the children.

• In his judgment, Justice Watts discussed the law in relation to surrogacy arrangements. He noted that all surrogacy agreements were illegal for Queensland residents at the time Mr and Mrs Dudley entered into their agreement.

• His Honour further noted that the laws in relation to surrogacy arrangements had changed in the time between the trial and the delivery of his judgment, making altruistic agreements legal.

• Despite the change in laws, Justice Watts found that Mr and Mrs Dudley’s commercial surrogacy agreement would have been illegal no matter which act was in force at the time the agreement was entered into.

• For this reason he referred the matter to the Office of the Director of Public Prosecutions for their consideration.

• Regardless of the illegality of Mr and Mrs Dudley’s actions, His Honour was still required to make a finding in relation to the living arrangements for the children in the case. He subsequently found that it was in the children’s best interests to live with Mr and Mrs Dudley.

This matter reiterates that commercial surrogacy arrangements are illegal for Queensland residents, even if the arrangement is entered into outside Queensland.

If you are a Queensland resident and are considering entering into a surrogacy agreement there are a number of important issues you need to consider.

Firstly, you need to ensure the agreement is legal. That is, that the agreement is an altruistic one and not a commercial agreement.

Secondly, if the intended parents agree to cover the birth mother’s reasonable expenses associated with the agreement, it is important to consider exactly what those expenses will be.

Thirdly, if you are the intended parent to an agreement, you will not automatically become the parent of the child born out of the agreement. In order to be legally recognised as the child’s parent you will need to apply for a parenting order under Part 2 of the Surrogacy Act 2010 (Qld). A parenting order will only be made if the court is satisfied of the following:

• All parties to a surrogacy agreement have received independent legal advice and independent counselling prior to the agreement being made;

• The parenting order would be in the child’s best interests;

• There is evidence of a medical or social need for the surrogacy arrangement (i.e., it is impossible for the intended parents to conceive a child on their own or without a real risk to the mother or child);

• The child has resided with the applicants for a period of at least 28 consecutive days before the application is made and is living with the applicants at the time of the application and hearing;

• The parties to the agreement were at least 25 years of age when the surrogacy arrangement was made;

• Each of the parties consent to the parentage order at the time of the hearing; and

• The applicant(s) are resident in Queensland.

Fourthly, it is important to know that surrogacy arrangements are unenforceable. Consequently neither party can rely on the agreement to enforce the arrangement if the birth parents refuse to give the child to the intended parents, or if the intended parents refuse to take the child.

If such circumstances were to arise, it would be up to the party seeking the arrangement to apply to the court for orders on whom the child should live with. The orders would be determined in accordance with what the court considers to be in the child’s best interests.

If you are considering entering into a surrogacy agreement and would like further advice, please contact the Wiltshire Lawyers team and we will be happy to assist.


Hollie Smith
Trainee Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

This article should not be considered as either formal or informal legal advice.  This article should only be read as general information relating to the particular subject matter it is written about.  The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.