In February 2010, the Queensland Government made the move to decriminalise altruistic surrogacy. Commencing 1 June 2010 the Surrogacy Act 2010 gives persons unable to have children of their own, for social or medical reasons, the opportunity to start a family through surrogacy.
As of 1 June 2010, individuals, opposite-sex couples, and same-sex couples can enter into a surrogacy arrangement to commence the process of starting a family with the assistance of a surrogate.
The surrogate and intended parents will need to be at least 25 years of age prior to entering into a surrogacy arrangement. The surrogacy arrangement will be a formal agreement between the birth mother, her spouse (if any), and the intended parents and will include provisions regarding the pregnancy, birth of the child and for the birth mother to be paid “reasonable birth costs” in relation to the birth of the child.
Prior to signing the surrogacy agreement, the surrogate and her spouse (if any), and the intended parents will need to obtain independent legal advice as to their rights and the effect of the agreement upon each of them as well as participate in counselling.
This formal agreement needs to be put in place prior to parties being able to commence the surrogacy process with their fertility specialist.
Upon the birth the child, the birth mother will be considered the child’s legal parent and guardian, irrespective of the intended parents’ biological connection to the child. The birth mother will be required to transfer parentage of the child to the intended parents by way of an Application to the Children's Court of Queensland. Prior to transferring parentage of the child to the intended parents, the Court will need to be satisfied that the birth mother, her spouse (if any), and the intended parents have participated in counselling, have obtained independent legal advice and that the transfer is in the best interest and wellbeing of the child.
It is very important to understand that in Queensland, the proposed legislation provides that a surrogacy agreement is not enforceable. In essence, the birth mother will not be required, at law, to relinquish the child to the intended parents, the biological parents, if she changes her mind. This will be a great worry for some parents, particularly as surrogacy may be their last chance to start a family.
It is strongly recommended, that if you or your partner are considering starting a family with the assistance of a surrogate that you obtain legal advice to ensure that you are fully aware of the legal implications before committing to a surrogacy agreement. Similarly, if you are considering being a surrogate then you should also be aware of your legal position.
In Australia, adoption of a child from Australia or overseas is arranged through each State or Territory’s adoption authority. The adoption authority in Queensland is Adoption Services Queensland within the Department of Communities.
There are a number of processes that need to be completed including satisfaction of the eligibility criteria as well as an in-depth assessment. If you are deemed to be eligible adoptive parents, the search will begin to match children to your family within Australia and overseas.
The initial step in applying for adoption is to have your names entered on the expression of interest register with Adoption Services Queensland. You may be eligible if you satisfy the following:
1) You have been living together continuously in an opposite sex de facto relationship or as husband and wife for at least two years, and are living together at the time of the application;
2) You are over eighteen (18) years years of age and a resident of Queensland;
3) Either you or your spouse are an Australian citizen;
4) The female partner is not pregnant;
5) Neither partner is undergoing fertility treatment and have not undergone fertility treatment within the previous six (6) months; and
6) You do not have custody of a child less than one (1) year old or a child who has been in your custody for less than one (1) year.
Adoption by a Step-Parent
There are circumstances where it is in a child’s best interest to be adopted by a step-parent such as where a child has had no contact or relationship with a parent and as a consequence, views the step-parent as a parent, or a biological parent of the child has passed away and the surviving parent has remarried.
In order for a step-parent to adopt a child, they must have the consent of both biological parents of the child. If you have the consent of both parents then it is necessary for the Family Court of Australia or the Children’s Court of Queensland to determine if the adoption is in the best interests of the child. If the Court is satisfied, a Final Order will be made granting the adoption.
In the event that you do not have the consent of one of the parents, then you can apply to the Children’s Court of Queensland to dispense with consent or you can apply to the Family Court of Australia for leave to adopt the child. In each case, the Court will need to be satisfied that it is in the best interests of the child for the step-parent to adopt.
If you would like more information, you can contact the msl family law team to find out more about adopting a child or adopting your step-child.
