It is part of the human condition to desire your own children and there are many circumstances which can result in people being unable to have children. Adoption and Surrogacy can be confusing and complicated, but the team at NLS Law has the experience to help eliminate the complexities by providing sound advice to help you achieve a successful outcome.


It is part of the human condition to desire your own children and there are many circumstances which can result in people being unable to have children.

Adoption and Surrogacy can be confusing and complicated, but the team at NLS Law has the experience to help eliminate the complexities by providing sound advice to help you achieve a successful outcome.

Surrogacy


In Australia, a surrogacy agreement alone is not legally binding in terms of transferring the legal parental responsibility and rights from the surrogate mother to the intended parents. The law still considers the birth mother as mother of the child, regardless of genetics. Accordingly, after the birth of the child, a parenting order or adoption is necessary to transfer parentage to the intended parents.

The Law in Australia

Surrogacy is only legal in Australia if it is on the basis of selflessness by the surrogate mother. Altrusitic Surrogacy is where a surrogate mother is given no financial gain for carrying a child for the intended parents. The surrogate mother is only able to receive payment of realistic out of pocket expenses by the intended parents, such as medical costs, travel, time off work etc, involved in carrying the child.

Simply put there can be no other benefit to the surrogate mother in committing to this process other than the sole concern for the well-being of the Intended Parents. The surrogate mother cannot receive any further compensation for her role, and there is therefore no commercial benefit to the surrogate.

On the other hand, a Commercial Surrogacy is where a surrogate is paid money for carrying a child and is not permitted in Australia.

The Surrogacy Act 2010 (NSW) defines a “commercial surrogacy” as providing a fee, reward or other material benefit or advantage to a person to enter into a surrogacy agreement, to give up a child under a surrogacy agreement or to consent to a parenting order in relation to a child under a surrogacy agreement.

The Surrogacy Act 2010 is intended to make it easier and more acceptable for parentage to be transferred in altruistic surrogacy arrangements. The legislation also imposes penalties for parties entering into commercial surrogacy arrangements.

It is also important to know that the Surrogacy Act specifies that when the child turns 18 they are entitled to receive their original birth certificate and their full birth history.

For more information on our surrogacy services please contact us and Neisha would be more than happy to speak to you about how she can best assist you along your journey.

Prior to conception

Prior to conception:

  • It is essential that you obtain legal advice and assistance in drafting a written and witnessed Surrogacy agreement which clearly lists your intentions;
  • All parties must also have counselling about entering into a surrogacy agreement; and
  • An ‘altruistic’ Surrogacy Arrangement is entered into in writing and is witnessed.


Once the child is born

  1. The birth mother and her partner must have counseling about the surrogacy agreement and its’s implications.
  2. The parties must seek a Parentage Order from the Supreme Court under the Surrogacy Act 2010 to transfer the parentage to the intended parents.
This order means that the child becomes a child of the intended parent(s) and they become the parents of the child, and that the child stops being a child of a birth parent and the birth parents stop being the parents of the child. This means that the child has the same rights as if they were a child of the intended parents and the intended parents have the same parental responsibility as the birth parents had before making the order.

Parenting Orders

Important time considerations
Must be not less than 30 days and not more than 6 months after the birth of the child.

Requirements for a Parenting Order:
  To apply for a parenting order you must have:  

  • An Independent Counsellor’s report on the Intended Parent(s); and
  • The following pre-conditions have been met:
  • The Applicants must live in NSW;
  • The child must be under 18 years of age;
  • The birth mother must be over 25 years of age at the time of the surrogacy agreement;
  • The intended parents must be at least 18 years of age at the time of the surrogacy agreement;
  • The intended parent must be a couple;
  • The maturity of younger Intended Parent must be demonstrated;
  • The child lives with the applicants at the time of the application and hearing;
  • The child’s wishes are considered (if they have sufficient maturity to express his/her wishes);
  • The court must be satisfied that there are medical or social need for the surrogacy arrangement;
  • All parties must consent to the parenting order;
  • The Applicants must be resident in NSW;
  • The Parenting Order is in the best interests of child;
  • There must be a pre-conception surrogacy arrangement in writing which is altruistic, not commercial;
  • All parties must have received Counselling about entering into the surrogacy agreement;
  • The birth mother and her partner must have had counselling after the child’s birth;
  • Independent legal advice has been obtained by all parties;
  • Information is provided for inclusion in the central register with the Director General of the Department of Health; and
  • The birth of child must be registered with Births, Deaths and Marriages.


Landmark cases

Application of MM and KF re FM [2012] NSWSC 445

On 4 May 2012, the New South Wales Supreme Court found for the first time in Australia that a same-sex couple were the legal parents of a child that was born through a surrogate, with the court ruling it was in the child’s “best interests” for the couple to be it’s legal parents.

In transferring the parentage of the child to the two men, Justice Paul Brereton was satisfied that the surrogacy was not a Commercial surrogacy agreement and that the woman who carried the child was not paid to do so.

While this case demonstrates the intention and application of the Surrogacy Act, more importantly it confirms that the legislation applies to transfer parentage of a child born through legal surrogacy to same-sex couples.

Adoption


NLS Law understands that this is a complex area of law and it is important that you speak to an expert in this area.

NLS can assist you with any adoption queries you may have. We pride ourselves on providing you with advice which turns something complex into something simple.


The Process

In NSW, the Family and Community Services (FACS) is the government agency responsible for providing adoption services.
The Adoption process for adoptive applicants is extensive and takes time. The following sets out the steps which are involved:

  1. Initial enquiry
  2. Expression of Interest for inclusion in adoption programs – local and/or intercountry
  3. Preparation for adoption seminar
  4. Formal application for adoption
  5. Initial screening of application
  6. Adoption Assessment.
  7. Determination of your suitability to adopt
  8. Entering pool of approved adoptive applicants or waiting list
  9. Placement
  10. Post placement stage
  11. Adoption Orders in NSW
For more information about FACS adoption procedures and requirements, and some of the issues facing adoptive parents and adopted children please see in the below document:

http://www.community.nsw.gov.au/__data/assets/pdf_file/0009/319617/Thinking-about-adoption.pdf

Community Services is currently the only agency in NSW that arranges Intercountry adoption placements i.e. adoption of a child from a different country. Intercountry adoption occurs between Australia and those countries that are a member of the Hague Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption. Australia also has bilateral agreements with some countries which are not members of the Convention.

Unfortunately the process of adoption in Australia is still in it’s infancy and the process is so complex and lengthy that very few Australians complete the process. For example, in 2012 only 41 children from overseas were allocated to NSW Intercountry adoptive families.

The Law

Approximately nine months following the placement of a child, adoptive parents need to apply to finalise the adoption in NSW by applying for a NSW court order, followed by a NSW birth certificate and a Citizenship certificate.

This applies to countries with whom Australia has a bi-lateral agreement or to countries who are members of the Hague Convention on Intercountry Adoption but a final order is not made in the overseas country or a Compliance Certificate is not provided.

Applications for adoption orders under the Adoption Act (“adoption applications”) may be commenced by the Secretary, Department of Family and Community Services (or the Principal Officer of an accredited adoption service provider in NSW) on behalf of the adoptive parent or parents, or the proposed adoptive parent or parents with the consent of the Secretary, or a child who is 18 or more years of age for his or her own adoption. However, the consent of the Secretary to an application for an adoption order is not required if the applicant is a step parent or relative of the child, or if the application relates to an intercountry adoption.

The Court Application

The Application for court orders requires the following documents to be filed with the court:

  1. An affidavit of the plaintiff in support of the application;
  2. An affidavit made by the author of the s 91 report, annexing a copy of the report prepared pursuant to s 91 of the Adoption Act. The s 91 report must have been prepared or updated no more than six months prior to the filing of the adoption application.
  3. An affidavit of each of the proposed adoptive parents, made not more than 60 days before it is filed.
  4. At least two affidavits made by referees for the proposed adoptive parents, annexing a handwritten referee certificate, made not more than six months before it is filed. The referees must not be related to the proposed adoptive parents and must have known the proposed adoptive parents for a period greater than two years.
  5. A draft minute of each proposed adoption order, in duplicate. A separate adoption order is required for each child the subject of the proceedings.
  6. A memorandum of adoption order, printed double sided and in the format required by the Registry of Births, Deaths and Marriages.
  7. Affidavits of service made by the person/s who personally served notice on a birth parent/s (or person with parental responsibility for a child).


The Court process for contested Applications

Generally, if the Application for adoption is contested (for example by a birth parent) the process will involve the following:

  1. A directions hearing will be scheduled. At the directions hearing, the Court will usually make an order, pursuant to the Adoption Act s 118, joining the person contesting the adoption as a defendant. The Court will also make orders for the service of evidence and/or directions about making information available to the parties. The parties are expected to have conferred for the purpose of providing a timetable to the Court for this to occur. A preliminary hearing will be listed.
  1. At the preliminary hearing, the Court will hear from the proposed adoptive parents and the birth parents, personally and on oath, in relation to the nature of their case and the reasons for it. The examination is conducted by the judge, and cross-examination is not usually permitted. The purpose of this procedure is for the court to elicit from each party their proposals and concerns, to highlight the real concerns and issues and emphasise directly to them the child-focussed nature of the inquiry and the paramountcy of the interests of the child. The Court will settle the list of issues and make such orders as may be appropriate including in respect of:
  • any further lay and expert evidence, if necessary, which will generally be confined to the real issues in dispute;
  • appointment of a guardian ad litem for a birth parent or a child, or of a legal representative for the child;
  • joinder of the proposed adoptive parents, if they are not already the plaintiff;
  • referral for mediation;
  • return of subpoenas; and
  • setting the matter down for hearing, or for further directions.
 
  1. At any stage of the proceedings, including at a preliminary hearing, the court may at the request of the parties, refer the parties to mediation.
  1. The court aims to set contested matters down for final hearing within three months of the preliminary hearing.
NLS Law understands that this is a complex area of law and it is important that you speak to an expert in this area. NLS can assist you with any adoption queries you may have. We pride ourselves on providing you with advice which turns something complex into something simple.

Contact NLS Law
Our clients appreciate a realistic assessment of the outcome of their case. If you need an honest assessment, or to discuss the options available to you, call NLS Law to discuss your current circumstances.
Sydney
Ph: (02) 4927 6315

E: office@nlslaw.com.au

Newcastle
Ph: (02) 4927 6315

E: office@nlslaw.com.au
Level 1, 93 Hunter Street,
Newcastle NSW 2300

Melbourne
Ph: (03) 8397 2222

E: office@nlslaw.com.au
555 Lonsdale Street,
Melbourne VIC 3000


Contact NLS Law
Our clients appreciate a realistic assessment of the outcome of their case. If you need an honest assessment, or to discuss the options available to you, call NLS Law to discuss your current circumstances.





Newcastle
Ph: (02) 4927 6315

E: office@nlslaw.com.au
Level 1, 93 Hunter Street, Newcastle NSW 2300


Melbourne
Ph: (03) 8397 2222

E: office@nlslaw.com.au
555 Lonsdale Street, Melbourne VIC 3000