Legal Process of Surrogacy

The Legal Process of Surrogacy

There are two types of surrogacy available for women who cannot have children for whatever reason. Laws about surrogacy vary in different states so consult your family lawyer to find out what’s legal in your state. Surrogacy brings hope to those couples who want a child that belongs to at least one of them genetically instead of adopting one, but cannot have one in the natural way. There are two types of surrogacy.

  1. The first and traditional way is when your spouse’s sperm is implanted into the surrogate mother using her own egg. This makes the surrogate the baby’s biological mother, even though she is carrying the child for another person.
  2. The second is when your own egg is fertilised by your spouse out of the uterus and implanted into the surrogate. This is referred to as a gestational surrogacy and the woman who carries the child has no genetic ties to it, since her egg was not used. She is called the birth mother.

The legalities of both are somewhat confusing in Australia, mainly because the law differs from state to state. And as technology changes the law changes too. However, generally speaking the gestational surrogacy is the easiest path to navigate legally, since both parents are genetically tied to the child while the birth mother is not.

Even so, it is a good idea for those who take either route to ensure they can become parents to seek the help of an experienced surrogacy lawyer to write up a legal contract – an agreement about who the parents are genetically and who will claim the child as their own when it is born.

In some states, especially with traditional surrogacy, the couple must actually adopt the child when it is born, to make it their own legally.  With a gestational surrogacy, this is not likely to be necessary. In other states, if you sign a ‘declaration of parentage’ before the birth, there is no need for an adoption.

A contract can also be used to outline what the parties have agreed to in the case of twins or triplets being delivered. It protects the right of the parents-to-be and those of the unborn child and if a problem arises and the case is heard in court, it can be helpful to have such a contract.

Unfortunately, with no Federal law and the definition of ‘parent’ changing over time, there is no guarantee of parental rights after a surrogate pregnancy. It is an area that is often fraught with emotional entanglement as well as legal issues. However, when couples – or indeed, singles – want a child so badly they will go ahead regardless of the risks or problems that may arise.