Queensland was the last state in Australia to have decriminalized surrogacy arrangements. After seventeen hours of heated parliamentary debate, altruistic surrogacy was finally decriminalized in Queensland. The law, the Family (Surrogacy) Act 2009 is applicable for heterosexual, same sex couples and sole parents as well. An opposition Act was mooted that provided which considered surrogacy for same sex couples an offence. The opposition Act though debated, failed to be passed. All opposition towards homosexual couples and single parents using surrogacy was slammed. It would have been highly discriminatory had Queensland not permitted altruistic surrogacy for same sex couples and single parents, allowing it only for heterosexual couples.
Some of the observations of the Family (Surrogacy) Act 2009 –
- Commercial surrogacy arrangement continues to remain illegal and is considered an offence.
- The Legislation provides for reasonable costs for the expenses incurred by the surrogate mother.
- The list of reasonable costs was provided by the Act and includes- becoming or trying to become pregnant; a pregnancy or a birth; the birth mother and the birth mother’s spouse (if any) being a party to an eligible surrogacy arrangement or proceedings in relation to a parentage order (legal expenses).
- The legal parentage of a child born out of surrogacy agreements will transfer from the surrogate mother to the intended parents by an application made to the Children’s Court Judge.
- However such an order shall be granted only after strict compliance to the requisites such as counseling, independent legal advice, age requirements, an independent report to the court and that the order is in the best interests of the child.
- There is no legal requirement for the intended parents to have a genetic connection with the child.
- The legislation accords the same legal position irrespective of the manner of conception of child under the agreement, genetic relations or parentage.
- Once the order for the transfer of parentage is obtained, the child’s legal status shall be in par with children born in the normal course, with the intended parents considered to be parents.
- The Act strictly prohibits any kind of advertisement seeking surrogates failing which the person advertising might face imprisonment for a period of three years.
- The legislation does not deal with surrogacy arrangements made outside the territory of Queensland.
- Receiving / Giving consideration beyond the reasonable cost is considered to be an offence punishable by 3 years.
- Even in southern Australia a law allowing heterosexual couples to become parents through a surrogate mother, who was not paid any monetary compensation, were passed.
- The Act also amends births, deaths and marriages act to ensure that intended parents are listed on their child’s birth certificate.