Legal Issue with Surrogacy in New South Wales

Identify a legal issue with surrogacy in new south wales, Australia (apart from interests of
child, withdrawing consent and enforceability of contracts.
Parentage Order
Legal Issue:
The issue of surrogacy has remained a contentious issue since long. While it is argued by some
that when a woman bears a child for someone else, it has to be considered as the ultimate
sacrifice, yet there are others who consider surrogacy as unethical and also detrimental for the
child who has been denied their birth parents. Therefore, although it is not unlawful, but the
proposed parents of the offspring who have been given birth through surrogacy had to face the
difficult legal battle of achieving full parenting rights. In this regard, until recently, it was
assumed under the law in New South Wales that the birth mother (or her partner, if there was
one) has to be considered as the legal parents.1 Therefore the surname mentioned on the birth
certificate was after mother. The meaning of this situation was the parents who were actually
raising the child to deal with issues like enrolling the child in school, making decisions regarding
healthcare and accessing facilities like Medicare. Moreover, the child was possibly deprived of
the legal rights like accessing inheritance.2 Therefore, the parents can achieve full rights of
parenting by applying for adopting the child. However this was costly as well a prolonged
process.
1 V. Jadva, "Surrogacy: The Experiences Of Surrogate Mothers" (2003) 18(10) Human Reproduction.
2 Damien W Riggs and Clemence Due, "Representations Of Surrogacy In Submissions To A Parliamentary Inquiry
In New South Wales" (2012) 16(1) Techné: Research in Philosophy and Technology.

Stakeholders:
 The birth mother;
 The birth mother’s partner (if any);
 Another birth parent (if any);
 The intended parents.
Relationships:
Under the circumstances, NSW introduced the Surrogacy Act in the State. This legislation now
provides that it is possible for the intended parents of the child, who has been born out of
surrogacy, for making an application to the NSW Supreme Court for getting a parentage order
after 30 days of the child’s birth. If such order has been granted, the parents get complete
parenting rights and also the birth certificate of the child carries their name.
In order to be eligible, it is required that:
 The surrogacy should be altruistic;
 The birth mother should be at least 25 years of age;
 Legal advice and counselling should have been received by all the parties;
 They should have given informed consent to the agreement before conception; and
 The child should be living with the intended parents when the application is made.
These provisions also mean that now the surrogate mother is allowed by the law to have her
expenses reimbursed by proposed parents. These include medical, counselling and legal bills.