Surrogacy: Queensland

Relevant Legislation?

Surrogacy Act 2010 (Qld)

Guiding Principles of the legislation

  • The well-being and best interests of a child born as a result of a surrogacy arrangement, both through childhood and for the rest of his or her life, are paramount.
  • A child born as a result of a surrogacy arrangement should be cared for in a way that—
    • ensures a safe, stable and nurturing family and home life; and
    • promotes openness and honesty about the child’s birth parentage; and
    • promotes the development of the child’s emotional, mental, physical and social well-being.
  • The long-term health and well-being of parties to a surrogacy arrangement and their families should be promoted.
  • The autonomy of consenting adults in their private lives should be respected.

Legality: What kinds of arrangements are legal?

Altruistic Surrogacy – Permitted

In Queensland altruistic surrogacy is legal.

Reimbursement is permitted for costs associated with:

  • becoming or trying to become pregnant
  • a pregnancy and birth
  • the birth mother and her spouse (if any) being a party to the surrogacy arrangement
  • court proceedings relating to the parentage order.

This may include medical costs for the birth mother; costs, including medical, for the child; health, disability or life insurance premiums bought in relation to the pregnancy and birth; certain counselling and counsellor’s report costs; legal costs; the birth mother’s loss of earnings for a period of 2 months (or more if she was unable to work due to medical reasons associated with the pregnancy); other reasonable costs associated with the surrogacy arrangement or the parentage order.

Commercial Surrogacy – Prohibited

Commercial surrogacy is prohibited with penalties of fines and/or up to three years in prison. 1 It is also an offence for someone who is ordinarily resident in Queensland to engage in commercial surrogacy elsewhere. 2

Who may enter into a surrogacy arrangement?

Any person, regardless of relationship status.

That is, intended parent(s) may be a married or de facto couple (including same-sex de facto couples) or single.

Gestational or Traditional Surrogacy?

Traditional and gestational surrogacy are permissible. (Provided the arrangement is altruistic).

Intended parent(s) do not need to have a genetic connection to the child or birth mother.

Any method for conception may be used (such as in-vitro fertilisation, artificial insemination, self-insemination or natural conception).

What criteria do the commissioning person(s) need to meet?

There must be a medical or social reason for entering into the agreement. 3

The arrangement must be made before the birth mother becomes pregnant.

In order to transfer parentage legal requirements must have been met that include:

  • independent legal advice prior to entering into a surrogacy agreement (the legal advice must not be provided by the same person who advises the birth mother); and
  • counselling prior to the arrangement concerning whose genetic material will be used, the social and psychological implications of entering into a surrogacy arrangement and applying for parenting orders, and the long-term implications for all parties.

In addition, see further below regarding gaining parenting orders and the criteria that need to be satisfied.

What criteria does the surrogate need to meet?

Independent counselling and legal advice prior to entering into the arrangement are a requirement of the Court granting parenting orders. (As per that described for the intended parents above).

The birth mother, and her partner if any, must be over the age of 25 years when they enter into the agreement.

The birth mother must register the birth of the child, and she and any partner will be named on the child’s birth certificate. Application must then be made to transfer legal parentage. 4

NOTE: The legislation explicitly provides that regardless of what is agreed or in writing ‘a birth mother has the same rights to manage her pregnancy and birth as any other pregnant woman’. 5

Is advertising legal?

No.

A person must not publish an advertisement, statement, notice or other material that—

(a) is intended or likely to induce a person to agree to act as a birth mother; or
(b) seeks or purports to seek a person willing to act as a birth mother; or
(c) states or implies that a person is willing to agree to act as a birth mother; or
(d) states or implies that a person is willing to enter into a surrogacy arrangement. 6

This includes any publication by public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.

There is a maximum penalty of a fine of 100 penalty units (appox $17,000) or 3 years imprisonment.

Can agents or intermediaries or other people be involved?

It is an offence provide a technical, professional or medical service to another person if the person knows the other person is, or intends to be, party to a commercial surrogacy arrangement; and the person provides the service with the intention of assisting the other person to become pregnant for the purpose of the arrangement.

(Penalty of 100 penalty units and/or 3 year imprisonment). 7

Enforceability: Can the parties change their mind?

Surrogacy agreements are not enforceable. 8 This means that the birth mother can change her mind and does not have to relinquish the child. The intended parent(s) may also change their mind.

Reimbursement of reasonable costs associated with the pregnancy and birth is enforceable unless the birth mother does not relinquish the child or consent to parenting orders. 9

Parenting Orders?

An application for a parenting order can be made no less than 28 days after a child’s birth, and no more than 6 months after a child’s birth.

The child must have been living with the applicants for more than 28 days before they can apply for an order.

The Queensland legislation provides extensive requirements that parties to the agreement must have met before an order will be made; this includes:

  • the birth mother 10 and her partner (if any), 11
  • any other ‘birth parent’ (a person who under the law would be considered the legal parent of the child), 12 and
  • the commissioning person(s), 13 and
  • legal advisors 14 and counsellors 15

must provide to the court written affidavits concerning the agreement swearing that the requisite criteria have been met.

A ‘surrogacy guidance report’ must also be prepared by an independent and appropriately qualified counsellor and submitted to the court.

The surrogacy guidance report must detail that

  • an independent and appropriately qualified counsellor interviewed the birth mother, the birth mother’s spouse (if any), another birth parent (if any) and the applicant, or joint applicants;
  • each relevant person’s understanding of the
    • social and psychological implications of the making of a parentage order on the child and relevant persons;
    • openness and honesty about the child’s birth parentage being for the wellbeing, and in the best interests, of the child;
    • the care arrangements that the applicant, or joint applicants, have proposed for the child; and
    • whether the making of a parentage order would be for the wellbeing, and in the best interests, of the child. 16

Access to Information for Children?

A stipulation of the guidance report is that a counsellor establishes each relevant person’s understanding of—

(A) the social and psycological implications of the making of a parentage order on the child

(B) openness and honesty about the child’s birth parentage being for the wellbeing, and in the best interests, of the child. 17

However, as there is no central registry for details of the birth mother and/or donors of gametes to be recorded in Queensland, the child’s future access to information about its birth, birth mother and/or donors of gametes is reliant upon the parties honouring the undertaking, made at the time that the independent counselling for the surrogacy guidance report and parenting order application were being made.

Notes:

  1. Surrogacy Act 2010 (Qld) s 56.
  2. Section 54.
  3. See further section 14.
  4. Section 18.
  5. Section 16(2).
  6. Section 55.
  7. Section 58.
  8. Section 15(1).
  9. Section 15(2).
  10. Section 27.
  11. Section 28
  12. Section 29.
  13. Section 26.
  14. Section 30.
  15. Section 31.
  16. Section 32.
  17. Section 32(d).