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How do I obtain a parentage Order after surrogacy in NSW?
Applying for a Parentage Order in NSW for Surrogacy:
Legal Process & Requirements
In New South Wales (NSW), intended parents of a child born through altruistic surrogacy must apply for a Parentage Order to gain legal recognition as the child’s parents. This order transfers legal parentage from the birth mother (the surrogate) and her partner (if applicable) to the intended parents.
The Family Law Act 1975 (Cth) does not govern surrogacy arrangements in NSW—surrogacy is regulated by the Surrogacy Act 2010 (NSW). However, the Federal Circuit and Family Court of Australia (FCFCOA) does play a role when dealing with certain related parenting matters.
1. Who Can Apply for a Parentage Order?
Under Section 12 of the Surrogacy Act 2010 (NSW), the intended parent(s) must meet the following criteria:
- The surrogacy arrangement was altruistic (no commercial payments).
- The child must be living with the intended parents at the time of the application.
- The intended parents must be at least 18 years old.
- At least one of the intended parents must be genetically related to the child (i.e., the child was conceived using one of the intended parent’s sperm or eggs).
- The surrogate mother and her partner (if any) must freely consent to the application.
- The arrangement must have been pre-approved by the Supreme Court of NSW, ensuring all legal, counselling, and procedural requirements were met before conception.
2. Steps to Apply for a Parentage Order
Step 1: Prepare Supporting Documents
- To apply, the intended parents must prepare and submit several documents, including:
- A copy of the Surrogacy Agreement signed before conception.
- Medical evidence of the child’s conception via the surrogacy arrangement.
- Counselling reports for all parties (including the surrogate and her partner) confirming they received appropriate legal and psychological guidance.
- Affidavits from the intended parents and surrogate, confirming that they entered into the agreement voluntarily.
- A sworn statement from the surrogate (and her partner, if applicable) confirming they consent to transferring parentage.
Step 2: File the Application with the NSW Supreme Court
- The intended parents must file an Originating Summons with the NSW Supreme Court under the Surrogacy Act 2010 (NSW).
- This application is usually made within 30 days to 6 months after the child’s birth.
- The Supreme Court will assess whether the surrogacy arrangement meets all legal requirements before granting a Parentage Order.
Step 3: Court Hearing in the NSW Supreme Court
- The Supreme Court will review the evidence and assess whether the arrangement meets the best interests of the child (a key legal principle).
- If the court is satisfied, it will grant a Parentage Order, legally recognising the intended parents as the child’s legal parents.
- The court then directs NSW Births, Deaths & Marriages to issue a new birth certificate, replacing the surrogate’s name with the intended parents’ names.
3. What if the Parentage Order is Disputed?
If a dispute arises (e.g., the surrogate withdraws consent), the intended parents may need to apply to the Federal Circuit and Family Court of Australia (FCFCOA) for parental responsibility orders under the Family Law Act 1975 (Cth). While the FCFCOA does not issue Parentage Orders, it can grant parenting orders that give the intended parents legal responsibility for the child.
4. What Happens After a Parentage Order is Granted?
- The intended parents become the child’s legal parents and assume all parental rights and responsibilities.
- The child’s birth certificate is reissued, listing the intended parents.
- The surrogate and her partner lose all parental rights and obligations to the child.
5. Key Legal References
- Act 2010 (NSW) – Governs altruistic surrogacy in NSW.
- Births, Deaths & Marriages Registration Act 1995 (NSW) – Ensures legal parentage is correctly recorded after a Parentage Order is granted.
- Family Law Act 1975 (Cth) – Relevant if intended parents need additional parenting orders from the FCFCOA.
Final Thoughts
The Parentage Order process in NSW is designed to protect all parties involved and ensure that surrogacy arrangements are ethical, informed, and in the best interests of the child. Because surrogacy laws are strict and complex, intended parents should seek legal advice to ensure compliance with all legal and procedural requirements.
At ALA Law, we understand that the surrogacy process can be legally complex and emotionally overwhelming. Our experienced Family Law team provides comprehensive legal guidance to help intended parents navigate the NSW Parentage Order process with confidence. From drafting legally compliant Surrogacy Agreements to preparing and filing your Parentage Order application in the NSW Supreme Court, we ensure all legal requirements are met efficiently and effectively. Our team also offers independent legal advice to both intended parents and surrogates, ensuring all parties understand their rights and obligations. If any challenges arise, including disputes over parental recognition, we can represent you in both state and federal courts, including the Federal Circuit and Family Court of Australia (FCFCOA), to secure your legal rights as parents.
At ALA Law, we are committed to providing compassionate, expert legal support, making your journey to parenthood as smooth as possible. Contact us today to discuss how we can assist you.
