GPA: elements to consider – Family law

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Starting a family is an exciting and stressful time for any new parent. However, people who want to enter into a surrogacy arrangement for the conception and birth of their child may face additional hurdles.

There may be questions that arise as to who is the legal parent of a child born as a result of a surrogacy agreement. In certain circumstances, the biological parent and his or her spouse (if applicable) are presumed to be the legal parents of the child, despite the manifest intention of the intending parent(s) to be the parent(s) of the child. Issues may also arise regarding the enforceability of the agreement and the overall cost of the process.

In order to become the legal parents of a child born through a surrogacy arrangement, the intended parent(s) must request a transfer of parentage so that the biological parent(s) do not remain the child’s legal parents. .

To request a transfer of parentage, the Intended Parent(s) must comply with various requirements under state law, some of which are set forth below:

  • The parties must undergo counseling with a qualified counsellor.

  • There must be independent legal advice given to each party before entering into the agreement.

  • The surrogacy arrangement must be registered.

  • A surrogacy agreement must be made before conception of the child.

  • There must be a medical or social need for the surrogacy agreement. This may include a single parent who cannot conceive or give birth to a child, a same-sex couple, or a couple who cannot conceive or give birth to a child for medical reasons.

  • The child’s birth must be registered.

  • An application for an order of filiation must be made at least 30 days and at most 6 months after the birth of the child.

An example of how problems can arise

The problems that can arise when making surrogacy arrangements were highlighted in the recent case of Tickner and Rodda [2021] FedcFamC1F 279. In this case, the petitioners, namely Mr. Tickner and Mr. B Tickner entered into a surrogacy agreement with the respondent. The plaintiffs and the respondent met online, but were otherwise strangers. The surrogacy agreement provided that the respondent would carry the child, Mr. Tickner would provide the sperm and an acquaintance of the applicants would donate her egg. The Respondent was not genetically related to the child.

The Respondent told the Counselor that she had terminated the pregnancy and surrogacy arrangement. However, the respondent did not terminate the pregnancy and the child was born. In this case, the unenforceability and difficulties of surrogacy arrangements have been noted, particularly when the parties are strangers.

Here, the best interest of the child was taken into consideration by the court. It was found that, as Mr. Tickner had provided his sperm for conception on the basis that he would be the parent of the child, he was one of the legal parents of the child and that Mr. B Tickner was a person interested in the welfare of the child. The court noted that as the child grows, he would likely want to know more about the person who gave birth to him. Therefore, the plaintiffs were granted equal shared parental responsibility for the child with the child to spend time with the defendant, as agreed between the parties.

The parentage order application was adjourned for further consideration.

It is important that when entering into a surrogacy agreement, all parties receive legal advice regarding the effects of the agreement, especially the intended parents, so that they can be in the best position to make grow their family with minimal hurdles.

If you are considering entering into a surrogacy agreement or require surrogacy advice, please contact our office to schedule an appointment with one of our family law attorneys.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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