Many married couples are keen to start a family and prepare for a future life of happiness. However, for various reasons it is not always possible for them to conceive a baby the traditional way. In this case, some couples consider a surrogacy arrangement, but this needs to be approached with caution as the law can be somewhat difficult to decipher. What do you need to consider if you're in this situation?
All parties should be aware before they make any arrangements for surrogacy that the law may not automatically recognise the intended mother. In the instance of a baby that was born following assisted reproduction treatment, the law will in fact consider the surrogate to be the mother and her partner to be the other parent, regardless of the fact that they may not have been the biological parents. This is because the Family Law Act in Australia is very specific when it comes to birth associated with these assisted reproduction treatments.
The Right Contract
It is important to consider a legal framework before considering surrogacy. In many cases, an arrangement like this involves another member of the family and there may be no cause for anxiety in relation to post birth legal requirements. However, nothing should be taken for granted and all parties should ensure that a proper legal framework is established before going forward.
Risk of Attachment
It is not uncommon for a surrogate mother to have a certain amount of attachment to the child following birth. In this case, there may be a dispute between the surrogate mother and the actual biological parents in relation to postnatal care and other issues. This can cause significant worries for crucial caregivers if such a situation should arise and in the absence of an existing legal agreement.
Don't Be Informal
When the parents simply decide to enter into an informal agreement with a surrogate mother ahead of the procedure, the law will not recognise this. Should you have decided this was the best course of action, then you will have to fight the issue in court, as the surrogate mother is judged to be the legally responsible entity.
Don't Take the Risk
Of course, as commercial surrogacy is illegal then you are far more likely to be "close" to the surrogate and able to come to a clear agreement before anything proceeds. It's important, however, to always commit such an agreement to writing in legal terms, as the last thing that you want is a disagreement during the first critical hours of the baby's arrival.
There may be cause for reform of the current situation relating to altruistic surrogacy. Until that time it's very important for you to consult legal representatives to help you draft the right legal contract in advance of your actions.