Can I use a surrogate to have a baby?

Hello Everyone,

I have just been reading about the changes to the law in Victoria which allow people who are unable to conceive a child naturally, to now legally have a child using a surrogate.

The January 2010 Assisted Reproductive Treatment Act (“ART”) gives Victorians the option of having a child using a surrogate, however, even with this new legislation, there are still a significant number of issues and a registered ART provider can only carry out a procedure if the surrogacy arrangement has been approved by a Patient Review Panel.

Unlike the USA, in Victoria a woman can not be paid to act as a surrogate, and she can only seek reimbursement for the costs associated with having the child and entering into the surrogacy arrangement. Examples of when a surrogate may be used are:-

1. If a woman is unable to physically become pregnant and/or carry a child a term, if she has a health condition which would make pregnancy dangerous, or if she is at risk of transmitting a genetic abnormality or genetic disease to the child.
2. If a couple in a male same-sex relationship wish to have a child using their sperm.
3. If a man wishes to have a child but has no partner.
4. If a woman, who has embryos in storage with her male partner, dies and the male partner wishes to use the embryos to have a child.

A donor egg (but not the surrogate’s), donor sperm or a donor embryo may be used for the surrogacy arrangement.

A surrogate is a woman who has agreed with another person to become or try to become pregnant, with the intention of giving that child to another person(s). To be a surrogate:

1. You need to have previously carried a pregnancy and given birth to a live child.
2. You need to be at least 25 years of age.

The commissioning parent(s) is the person or couple for whom the child is carried and who will ultimately be the “parents”. To qualify as a commissioning parent:

1. You must reside in Victoria and the procedure must take place here.
2. A doctor must certify that:
a. It is unlikely you (or your partner) will become pregnant or be able to carry pregnancy or give birth; or
b. If you are a woman, that you are likely to place your life or health, or that of the baby, at risk if you become pregnant.

Prior to implantation taking place, both the surrogate (and her partner) and the commissioning parent(s) will need to receive counseling and obtain independent legal advice in relation to the surrogacy arrangement.

When the child is born the surrogate (and if the surrogate is married or in a de facto relationship, the surrogate’s partner) will be named as the child’s legal parent(s) on the child’s birth certificate.

Until a Substitute Parentage Order has been made, the surrogate will remain the child’s legal parent, however, by agreement the commissioning parent(s) can have the full time care of the child immediately after the child’s birth.

After 28 days from the birth, the commissioning parent(s) can apply to the County Court for a “Substitute Parentage Order” to become the legal parent(s) of the child and to be registered as the child’s parent(s) on the birth certificate. The surrogate and her partner will need to consent to the order being made.

What if the surrogate refuses to relinquish the child after the birth?

As Surrogacy Agreements are not legally binding, if the surrogate refuses to relinquish the child to the commissioning parent(s) or does not consent to a Substitute Parentage Order being made the commissioning parent (s) will need to apply to the Family Court for Parenting Orders. There is no guarantee however that such an application would be successful or entirely satisfactory.

A written Surrogacy Agreement may be used in the Court as evidence as to what was intended by the commissioning parents and the surrogate, but it would not override the power of the Court to make decisions based on what it considers to be a child’s best interest.


What if the commissioning parents refuse to take the child or apply for a Substitute Parentage Order?

The surrogate cannot legally force the commissioning parent(s) to take possession of the child or to apply for a Substitute Parentage Order and if they refuse to do so the surrogate mother (and her partner) will remain the child’s parent(s).

Substitute Parentage Orders

The commissioning parent(s) must wait 28 days after the birth of the child before an Application for a Substitute Parentage Order can be made and the Application must be made within 6 months of the birth of the child (unless leave of the Court is obtained). In order for a Substitute Parentage Order to be granted:

1. The child must have been conceived as a result of a procedure carried out in Victoria;
2. The commissioning parent(s) must live in Victoria;
3. It must be in the best interests of the child to make the Order;
4. The Surrogacy Arrangement must have been approved by the Patient Review Panel before it was entered into;
5. The child is living with the commissioning parent(s) at the time the application is made;
6. The surrogate mother and/or her partner have not been paid by the commissioning parents; and
7. The surrogate mother freely consents to the making of the Order.

The outcome of a Substitute Parentage Order is that the commissioning parent(s) will become the child’s legal parents and the child’s birth certificate will be altered to reflect this.

Please note surrogacy legislation will vary from State to State.

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555