Last updated 14 January 2019
At law, the birth mother and her partner, if she has one, are the legal parents of the child. The Surrogacy Act 2010 (Qld) (Surrogacy Act) provides a mechanism for transferring parentage so the intended parents become legally recognised as parents of the child born as a result of the surrogacy arrangement. Under the legislation, a parentage order may be sought from the court with the consent of all parties. The effect of a parentage order is that the child becomes a child of the intended parent(s) and parentage of the child is removed from the birth parent(s).
The intended parent(s) may apply to the Childrens Court for a parentage order once the child is between 28 days and 6 months old, or at a later time with the court’s leave (s 21(1) Surrogacy Act). The child must:
- be residing with the intended parent(s)
- have been residing with the intended parent(s) for 28 days prior to the application being made
- be residing with the intended parent(s) at the time of the hearing (s 22 Surrogacy Act).
To grant a parentage order, the court must be satisfied that the order will be for the wellbeing and in the best interests of the child (see s 22 of the Surrogacy Act for a list of matters of which the court must be satisfied before a parentage order may be made). As part of the application, sworn affidavits from all the parties, legal advisors, medical practitioners and counsellors demonstrating that the requirements of the Surrogacy Act have been satisfied, must be provided to the court (ss 25–31 Surrogacy Act). In addition, a surrogacy guidance report must be provided by an independent counsellor who interviews the parties for the purposes of the application (s 32 Surrogacy Act). The counsellor must form an opinion about the parties’ understanding of the implications of the proposed parentage order and, having regard to the care arrangements proposed, whether the order would be for the wellbeing and in the best interests of the child.
If any of the requirements outlined in s 22 of the Surrogacy Act cannot be satisfied because, for example, the surrogacy arrangement is commercial, the court cannot make a parentage order. In such cases, the intended parents may seek a parenting order under the Family Law Act 1975 (Cth). While a parenting order may confer parental responsibility on the intended parents, it does not transfer parentage.
There have been a number of cases involving surrogacy arrangements where the Family Court has made parenting orders in favour of intended parents. For some examples see Fisher-Oakley v Kittur  FamCA 123, Ellison and Anor & Karnchanit  FamCA 602 or Dennis and Anor & Pradchaphet  FamCA 123.
In Ellison and Anor & Karnchanit, the court made parental responsibility orders for twins born as a result of a commercial surrogacy arrangement in Thailand. The surrogacy arrangement was illegal under Queensland legislation at the time as it would be under the current legislation (s 56 Surrogacy Act). The applicant intended parents were potentially liable to prosecution and imprisonment for up to three years. The court had to balance the illegality of the commercial surrogacy arrangement and the welfare of the children which would not be met if their parents were imprisoned. In the course of her judgment, Her Honour Justice Ryan noted the potential emotional and psychological harm the applicants’ imprisonment would have upon the children. While the orders sought by the applicants were granted, the case illustrates the difficulties potentially faced by intended parents who enter into commercial surrogacy arrangements and the competing interests the court must address.
The legislation provides that applications can be made for an order to discharge a parentage order if:
- the order was obtained by fraud, duress or other improper means
- any consent provided was not given or given for commercial gain (other than the birth mother’s surrogacy costs)
- there is an exceptional reason for a discharge order to be made (ch 3 pt 4 Surrogacy Act).