Surrogacy Applications & Parentage Orders

A recent surrogacy case heard in the New South Wales Supreme Court regarding an application for a Parentage Order under the Surrogacy Act 2010 (the Act) highlighted the importance of ensuring that there is strict compliance with the requirements of the Act before a Court can be satisfied that a Parentage Order should be made.

The Act mandates that the Court must be given the following documents and information (noting that this list is not exhaustive) before it can make a Parentage Order:

  • A copy of the child’s birth certificate;
  • A copy of the surrogacy agreement;
  • A sworn Affidavit of the Applicant(s);
  • A sworn Affidavit of the birth mother (and, if any, the birth mother’s spouse);
  • A sworn Affidavit by the counsellor who gave counselling to any of the aforementioned parties before the surrogacy arrangement was made;
  • A sworn Affidavit by the lawyer who gave legal advice to the person before the surrogacy arrangement was made; and
  • For each applicant who is a woman, a sworn Affidavit from an appropriately qualified medical practitioner as to why the applicant is an ‘eligible woman’ under the Act.

Furthermore, specific information must be addressed and included in each of the required Affidavit’s mentioned above.

In a recent case, the Court was unable to make the Parentage Order, despite the fact that all other requirements under the Act had been complied with, because of a deficiency in the evidence in one of the Affidavit’s filed.  The deficiency was in relation to the evidence of the parties obtaining independent legal advice about the surrogacy arrangement and its implications.

Interestingly, a ‘Statement of Independent Legal Advice’ was annexed to the agreement that dealt with some of the matters required by the Act.  As an Affidavit addressing all of the matters required by the Act was not filed, the Court could not grant the Parentage Order.  This resulted in a delay (and possibly further cost) to the parties involved until the deficiency was able to be rectified.
This case stresses the importance of obtaining sound and thorough legal advice to ensure that all required evidence is filed and that all mandatory preconditions specified in the Act are complied with.

For further advice or information regarding Surrogacy and/or Parentage Orders please contact the team at Damien Greer Lawyers.

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