changes to surrogacy laws

On June 1 2010, the Surrogacy Act 2010 (QLD) came into effect, changing the laws regarding surrogacy in Queensland. The legislation means surrogacy is no longer illegal in Queensland, bringing Queensland in line with other Australian jurisdictions. The Act puts in place a regime to regulate surrogacy arrangements between consenting adults to ensure the best interests of children born of surrogacy are protected.

The law means a surrogacy arrangement can be entered into between a woman and ‘intending parent/s’, where the woman agrees to become pregnant with the intention that the child born will be considered the child of the intending parent/s and after the birth the intending parents will have the permanent custody and guardianship of the child.
There must be a medical and / or social need for the surrogacy arrangement and this means to be eligible as an intending parent, a woman must be unable to conceive or there are difficulties surrounding her conceiving a child. Then, as far as who can be intending parents, the law states they can include a single person, a man and an eligible woman, two men or two eligible women however all parties to a surrogacy arrangement must be 25 years of age or over at the time the arrangement is entered into.
In the event these conditions are satisfied and a child is born, the intending parents can ask a court to transfer the parentage of the child to them. Where there are multiple children born of the pregnancy then a court must transfer the parentage of all children to the intending parents and the siblings cannot be separated.
Commercial surrogacy, that is where the birth mother receives a payment or reward for being a surrogate, remains an offence and can result in imprisonment. This however does not prevent a birth mother being reimbursed for her reasonable expenses resulting from the pregnancy including medical, counselling and legal costs as well as actual lost earnings if the birth mother is unable to work for medical reasons associated with the pregnancy.
Finally, despite the introduction of this law making surrogacy lawful in Queensland, any surrogacy arrangements entered into cannot be enforced by the courts.     

Schultz Toomey O’Brien
5413 8927
ltoomey@stolaw.com.au