News.com.au have reported on a Queensland woman who is acting as a surrogate for her gay brother. The baby she’s carrying was fathered by a third party through artificial insemination, and the gay man plans to raise the baby as a single dad. The baby is due early in 2010 and will know who its biological mother is.
The article reports that the surrogacy is illegal in her home state of Queensland.
“Surrogacy laws in Australia are largely regulated by the states and it varies from state to state,” says gay legal professional Ghassan Kassisieh. “In Queensland, all surrogacy is illegal. In NSW, commercial surrogacy (paying a fee or giving a reward for surrogacy services) will be outlawed when the Assisted Reproductive Technology Act 2007 commences, but altruistic surrogacy (where there is no financial gain or reward involved) will remain legal. Advertising for surrogacy services is also illegal in some states.”
“I understand that my own situation is a little different to what people would normally hear about,” the father to be told News.com.au.
“I guess the other thing that makes my situation a little unique is that I intend to be a sole parent. I am single, and am looking forward to being a single dad.”
Rodney Cruise, a spokesperson for Gay Dads Australia, told News.com.au that there could be hundreds of these kinds of surrogacy pregnancies happening out there, despite the illegality. Cruise says that these arrangements are considered, well-planned and that the man is lucky to have a family member who is willing to do this for him.
Some experts say that such arrangements are unnecessarily breaking the bonds between mother, father and child, and that prospective parents can be faced with children who, down the track, may demand to live with their biological parents.
“Sometimes [children] decide not to get along with their parents with whom they live with because they have leaving options. What if the sister didn’t like the way her brother raised her child? She could legally take the child back.”
“Apart from the legality of surrogacy, the big problem is really after a child is born and determining who are the legal parents,” says Kassisieh. “In most states (including NSW), the surrogate mother (and her partner, if any) will be the legal parents and there are very few avenues for having the child legally recognised as the child of the intended parent(s). This is the case even if the surrogacy arrangement goes to plan and the parties are all in agreement.
“In such states, the best option for the intended parents is a parenting order from the Family Court awarding them parental responsibility, however this does not grant all the rights of full legal parentage. The surrogate mother and her partner, if any, remain as the legal parents to the child (e.g. for inheritance reasons, accident compensation, state and federal-based legal rights etc.) for the remainder of their child’s life.
“In some states (e.g. ACT, Victoria, WA), the intended parents can get a court order in some circumstances transfering the legal parentage from the surrogate mother (and her partner, if any) if the surrogate mother consents. This effectively allows the intended parents to ‘adopt’ their child, if all parties agree, the agreement satisfies the conditions of the law, and the court determines that a parentage order would be in the best interests of the child. In other words, the child is fully recognised as the child of the intended parents – and not the child of anyone else.”
[Link: Original Article]
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