A surrogate mother, a friend’s donated egg, donated sperm and two commissioning parents make a somewhat unconventional start to life and highlights the legal hurdles faced by Australia’s many childless couples. “In the last three years alone there have been six parliamentary inquiries and one independent legal inquiry about surrogacy in Australia,” explains Antoinette Moylan, Senior Associate and Accredited Family Law Specialist with Marshalls+Dent.

When surrogacy became an offence in Victoria in 1989, people wanting surrogacy services began to turn to countries where it was legal. This started with the USA but soon black “breeder” markets developed in poor countries like India and Thailand. The fear that vulnerable women were being exploited led to surrogacy being legalised in Victoria in 1995. But there was a catch – both the commissioning woman and the surrogate mother had to be infertile for it to be legal.

The sharp rise in illegal surrogacy in Victoria since 2005 highlighted the flaws and anomalies in Victorian fertility legislation and the many barriers in the way of childless couples. This broader awareness led to the Victorian Assisted Reproductive Treatment Act 2010 which finally removed the requirement that surrogates had to be infertile and introduced new measures for transferring parentage from the surrogate to the commissioning parent/s.

Currently in Victoria only gestational surrogacy is legal meaning the surrogate has no genetic connection to the child. This involves implanting the surrogate with an embryo created with an egg from another woman and sperm.

In addition, the commissioning parents/surrogates can’t advertise and must first seek medical and legal advice before registering with an approved clinic. Finally, the Patient Review Panel must be fully satisfied that all parties meet its exhaustive criteria. Then once the baby is born, the commissioning parent/s apply to the court for a substitute parentage order naming them as the child’s legal parents.

“It’s really important that all parties are aware that surrogacy agreements are not enforceable contracts,” explains Marshalls+Dent’s Antoinette Moylan. “So everyone involved should seek independent legal advice around issues like the reimbursement costs commissioning parents will agree to cover, custody and access by the surrogate, legal status and parenting of the child and what you’ll do if the process doesn’t go as planned.”

With our ageing population and the increasing tendency of people putting off having children until later in life, surrogacy is only set to become more common.

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