Analysis of Surrogacy Legal Issues and Parentage Orders in NSW

This report analyzes a specific legal issue surrounding surrogacy in New South Wales (NSW), Australia, excluding interests of the child, withdrawing consent, and enforceability of contracts. The primary focus is on parentage orders, and how the Surrogacy Act 2010 addresses the legal parentage of children born through surrogacy. The report highlights the historical context where birth mothers were initially considered the legal parents, causing challenges for intended parents regarding school enrollment, healthcare decisions, and inheritance rights. It then details the current legal framework, which allows intended parents to apply for parentage orders after the child's birth, granting them full parenting rights and reflecting their names on the birth certificate. Eligibility criteria for parentage orders, including altruistic surrogacy, age requirements, legal and counseling advice, informed consent, and the child's living situation, are also discussed. Furthermore, the report outlines the permissible expenses that intended parents can reimburse to surrogate mothers under the current law, including medical, legal, and counseling costs. The report concludes by providing a bibliography of the relevant sources, including the Surrogacy Act 2010 and related regulations.

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.

Sources:
1. Surrogacy Act 2010 No 102
2. Surrogacy Regulation 2016
Remedies:
According to the present law in NSW, Australia, altruist surrogacy arrangements have been
declared to be legal. As a result, the reasonable costs that may be related with (i) becoming or
trying to become pregnant; (ii) pregnancy or birth (iii) entering into and giving effect to
surrogacy arrangement, can be recovered.3 This may also include the cost related with the
medical treatment of the surrogate mother, his travel or accommodation, loss of earning due to
unpaid leave at the cost related with the counselling of surrogate mother and partner (if any),
legal advice and particular proceedings regarding the parentage order.
3 Ed. Lee Taylor, "4. Trends In New South Wales" (2011) 22(1) New South Wales Public Health Bulletin.

Bibliography
Jadva, V., "Surrogacy: The Experiences Of Surrogate Mothers" (2003) 18(10) Human
Reproduction
Riggs, Damien W 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
"Surrogate Mothers Need Better Protection" (2010) 208(2790) Appendix: New South Wales
Child Health Survey 2001 Questionnaire" (2003) 14(1)
Taylor, Ed. Lee, "4. Trends In New South Wales" (2011) 22(1) New South Wales Public Health
Bulletin