Legislation around these arrangements is complex and differs between States and Territories, so it is important to seek legal advice and support.
In NSW, it is a criminal offence for a NSW resident to enter into a commercial surrogacy arrangement.
Following amendments to NSW surrogacy laws in or about 2011, the intended parents of a child born through altruistic (non-commercial) surrogacy can apply for a parentage order to gain full parenting rights, and to have their names on the child’s Birth Certificate. All parties must receive legal advice and counselling to be eligible to apply for a parentage order.
A child conceived through IVF is legally considered to be the child of the birth mother, but the intended parents can apply for parentage to be transferred to them. Donors have no legal or financial obligations.
Single women, heterosexual or married couples and same-sex couples now all enjoy equal rights to receive IVF treatment, however complexities still exist surrounding the use of IVF in gay and lesbian co-parenting arrangements, surrogacy agreements or for people whose relationships may not meet the definition of ‘de facto’.
For lesbian couples where one partner gives birth to a child because of an artificial conception procedure, the couple will (in most circumstances) legally be considered the child’s parents.
The same may not apply to gay male couples as, to protect sperm donors from financial and other responsibilities, the law has only recognised donors as “parents” in limited circumstances.
Couples in this situation may need to take steps to legally formalise their parental status, either by obtaining parenting Orders from the Court or by adopting the child.
Children born of surrogacy and IVF, and their parents, gain important rights and protections when parentage is legally conferred. Legal parents have the right to make medical decisions and apply for Passports for their children.
A presumption of parentage can also have significant consequences in terms of whether you have parental responsibility for a child, or can seek or be compelled to contribute financial support for a child.