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Children and custodyGeneral family law blogs

Legal limbo for children of a commercial surrogate

By October 17, 2017November 22nd, 2017No Comments

By Gianna Huesch

The Family Court has delivered a decision which is being seen as demonstrating a “legislative vacuum” and highlighting the need for urgent legislative amendments in relation to children born to commercial surrogates overseas. It’s thought that the decision could affect hundreds of children who in effect are “left without legal parents”.

In the case, an Australian couple paid a surrogate in another country to give birth to a girl conceived from the Australian man’s sperm and an egg from an anonymous donor.  After the child’s birth in 2014, the couple returned to Australia to raise her in Victoria.

They then applied through the family courts to be declared her legal parents, but Judge Berman would not provide them with a declaration of parentage.  The Judge did, however, give the couple parental responsibility, meaning they were able to make decisions relating to caring for the girl.  This meant while the couple could make parenting decisions relating to the girl (for example regarding health or schooling), she would not have the same legal rights as a child with legally recognised parents.

The couple appealed, but now the full Family Court has upheld Judge Berman’s decision ruling the couple are not the child’s legal parents, with the three judges confirming they are powerless to decide the status of children born through surrogacy, because the commonwealth Family Law Act 1975 affords this power to the states and territories.  However, the states do not recognise children born through commercial surrogacy.

This loophole leaves the child in this case, and others like her, “potentially stateless”.  According to the judgment, it results in a situation where “the parentage of the child is in doubt”, despite the man in this case being the undisputed biological father.

The decision is being viewed as a landmark one, because it is the first time the full Family Court has ruled on the subject; in the past, there have only been idiosyncratic decisions by individual judges in cases involving parentage of a child born to a commercial surrogate.

There are now calls to have the law urgently reviewed to provide certainty and legal remedies for families using surrogacy so they don’t “fall through the cracks of the state and commonwealth legislation”.

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Do you need help with a family law matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance.


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