Surrogacy or Assisted Reproductive Treatment

As of 1 January 2010 the Assisted Reproductive Treatment Act (Vic) 2008 ("the ART Act") was enacted which allows parties to enter into surrogacy arrangements. The ART replaces the outdated Infertility Treatment Act 1996.

One of the key benefits now available to parties who enter into a surrogacy arrangement is the opportunity to apply to th County Court of Victoria for a Substitute Parentage Order. This order binds the Registrar of Births, Deaths and Marriages to amend the child's birth certificate to register the commissioning parents as parents of the child. 

An Application for a Substitute Parentage Order must be made not less than 28 days, and not more than 6 months after the birth of the child.

Prior to 1 January 2010, the legal parent of a child born as a result of a surrogacy arrangement would be the surrogate mother and it would be her details registered as the parent on the child's birth certificate. Even in circumstances where the parties are using the services of a registered ART provider and the commissioning father's sperm is used to fertilize the donated ovum, under the Status of Children Act 1974, the commissioning father would not be considered to be the legal parent of the child.

These recent changes in the legislation provide commissioning parents with the opportunity to be registered on the child's birth certificate. This can be a rewarding experience for parents at the end of the IVF treatment procedure which can be a long and exhaustive process.

The ART Act sets out regulations and guidelines for parties wishing to enter into a surrogacy arrangement including:

1.  All surrogacy arrangements must be approved by the Patient Review Panel (a government selected panel)

2.  That a doctor has formed an opinion that in the circumstances,
  (a)  the commissioning parent is unlikely to become pregnant, be able to carry a pregnancy or give birth; or
  (b)  if the commissioning parent is a woman, the woman is likely to place her life or health, or that of the baby at risk if she becomes pregnant, carries a pregnancy or gives birth

3.  That the surrogate mother's genetic material (eg ovum) is not to be used

4.  That the surrogate mother is at least 25 years of age and has previously given birth to a live child

5.  That the commissioning parents, the surrogate mother (and her partner, if any,) have received counseling by a counselor who provides services on behalf of a registered ART provider about the social and psychological implications of entering into the arrangement as well as the implications of the relinquishment of the child and the relationship between the surrogate mother and the child once born

6.  All parties must also obtain legal advice in relation to the surrogacy arrangement as well as a Criminal Records Check and a Child Protection Order Check

7.  It is an offence for the surrogate mother to obtain a material benefit or advantage as a result of entering into the surrogacy arrangement. However it is lawful to reimburse the surrogate mother's costs as a direct consequence of entering into the surrogacy arrangement.

In certain circumstances, if a surrogacy arrangement was commissioned without the assistance of a registered ART provider, an Application can still be made for a Substitute Parentage Order.

Berry Family Law can provide you with detailed advice in all aspects of surrogacy arrangements and was one of the first law firms in Victoria to obtain substitute parentage orders and at present is the only firm to have successfully done this on multiple occasions.

Berry Family Law  has regular contact with Melbourne IVF and Monash IVF and is listed as a preferred law firm. Should you have any queries regarding surrogacy arrangements or require any further assistance, please do not hesitate to contact us.
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