Recognition of parentage in Australia

If you are planning to engage in surrogacy it is important to seek legal advice about whether you can have legal parentage of a child or may require a court order for parental responsibility.

Legal parentage

In Australia, various laws set out rules about who is recognised as the legal parents of a child and what entitlements and responsibilities they have, for example, around parenting, education, health, social benefit payments, inheritance etc.

In an Australian surrogacy arrangement, the surrogate (and sometimes her partner) is the legal parent of the child at birth. Parentage must then be transferred to the intended parents by a court order. Courts will generally only agree to this if the surrogacy rules of the relevant state or territory have been followed.

Legal parentage is usually not recognised in Australia for parents who commission a child under a commercial surrogacy arrangement, or otherwise don't follow the rules of the relevant state or territory surrogacy law. This means that by law the surrogate will remain the legal parent of the child. In some jurisdictions, in exceptional or limited circumstances, a judge may have discretion to order the transfer of legal parentage from a surrogate to the commissioning parents.

The consequences of not being recognised as a legal parent will vary and will depend on the issue and the relevant law.

Parental responsibility

If you are not recognised under Australian law as the legal parents of a child, a court may order you have parental responsibility for the child. Parental responsibility means all of the duties, powers, responsibilities and authority which legal parents have in relation to children. For example, who:

• can make decisions about where a child lives or goes to school.
• is entitled to or responsible for payments for the costs of raising a child.
• makes medical and other important decisions affecting a child.

A court order for parental responsibility can overrule the responsibility of the legal parent (i.e. the surrogate).

Australians can obtain an order for parental responsibility in Australia by application to the family law courts. If commissioning parents have an overseas court order that gives them parentage or parental responsibility for a child, Australian family law courts may be able to register the parts of those overseas orders that provide for parental responsibility, so that they are enforceable in Australia. These child orders might say who a child lives with, spends time with or has contact with. However, judges have some discretion over whether or not to register an overseas child order, and some have refused to do so.

Different laws have different rules about whether parents with only parental responsibility, and their children, have the same entitlements or responsibilities as legal parents and their children. Unlike legal parentage, parental responsibility often stops when a child turns 18, gets married or enters a de facto relationship.