Attachment 1
PROPOSED QUEENSLAND MODEL
FOR THE DECRIMINALISATION OF ALTRUISTIC SURROGACY
AND THE TRANSFER OF LEGAL PARENTAGE
A.
INTRODUCTION
Surrogacy, including altruistic surrogacy, is currently prohibited in Queensland under
the Surrogate Parenthood Act 1988.
The Queensland Government response to the Report by the Investigation into
Altruistic Surrogacy Committee (the Committee), Investigation into the
Decriminalisation and Regulation of Altruistic Surrogacy in Queensland was tabled
in the Legislative Assembly on 23 April 2009.
The Government has committed to making altruistic surrogacy legal and a mechanism
for the transfer of legal parentage from the birth mother to the intending parents. This
proposed Queensland model provides the framework for legislation to implement this
commitment.
Any interested person or organisation is welcome to provide comments on the
proposed Queensland model. You can provide your input before Friday, 31 July 2009
as follows:
 By email to: legalpolicysubmission@justice.qld.gov.au; or
 By posting it to Director, Strategic Policy, Department of Justice and AttorneyGeneral, GPO Box 149, Brisbane QLD 4001.
The Standing Committee of Attorneys-General is also currently considering a national
model for regulating surrogacy.
The Queensland legislation will have regard to comments on the proposed
Queensland model together with any deliberations of the Standing Committee of
Attorneys-General.
It is intended that the Queensland legislation will be finalised by the end of 2009.
B.
WHAT PRINCIPLES ARE USED IN THE QUEENSLAND MODEL?
The Queensland model is underpinned by the main principle that the ‘best interests of
the child’ is the paramount consideration.
This model seeks to guarantee that the ‘best interests of the child’ are protected by
ensuring that each child should enjoy the same status and legal protection irrespective
of the circumstances of birth or the status of his or her parents and each child will be
raised in a nurturing and supportive environment.
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A further consideration of this Queensland model is that there should be minimal
intrusion into individuals’ private lives, while at the same time ensuring vulnerable
people are protected.
C.
WHAT IS A SURROGACY ARRANGEMENT?
The features of a surrogacy arrangement are:
 the arrangement is in writing;
 the birth mother agrees to conceive the child with the express intention that
responsibility for the child’s care and upbringing will be permanently relinquished
to someone else (the intending parent/s) after the child’s birth;
 the intending parent/s agree to be responsible for the permanent care and
upbringing of the child;
 that the birth mother and intending parent/s have the capacity to consent, and freely
consent, to entering into the arrangement;
 the arrangement is made prior to the child’s conception; and
 there is no payment, reward or other material benefit to either party to the
arrangement, that is, it is not a commercial arrangement.
In this paper, the use of the term ‘surrogacy arrangement’ means the arrangement that
is described above.
D.
LEGAL EFFECT OF A SURROGACY ARRANGEMENT
Is it legal?
Under the Queensland model it is no longer unlawful for parties to enter into a
surrogacy arrangement. However, a commercial surrogacy arrangement, where there
is a payment, reward or any material benefit to any of the parties for entering into the
arrangement, is to remain unlawful.
What about the reimbursement of reasonable costs to the birth mother?
Payment of, or reimbursement to, the birth mother of her reasonable expenses
associated with the surrogacy is permitted. Reasonable expenses include:
 medical expenses associated with pre-conception, conception, pregnancy, birth and
care of the child that are not recoverable under Medicare, a health insurance or
other scheme. This includes the premium paid for any insurance that would not
have been taken out but for the surrogacy arrangement;
 counselling costs, including costs of any psychosocial assessments and/or reports
associated with the surrogacy arrangement and obtaining a parentage order;
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 legal costs associated with the surrogacy and transfer of legal parentage, including:
solicitors fees for obtaining legal advice and representation, court costs, birth
certificate fee, re-registration of birth fee and transfer of legal parentage;
 lost earnings to a maximum period of two months during which the birth was
expected to occur or other time if there are medical reasons; or
 Other costs also such as travel and accommodation where it is directly related to
the surrogacy and making of the parentage order.
Will the surrogacy arrangement be enforceable?
Consistent with the Committee’s recommendations, a surrogacy arrangement is not
legally enforceable, except for the payment of reasonable expenses if the parentage
order has been made. This will avoid situations of the forced relinquishment of the
child from the birth mother.
Parties entering into surrogacy arrangements must accept responsibility for the risks
involved and should examine all issues before entering these arrangements, including
that there will not be any remedy if the birth mother does not relinquish the child.
Are there any criminal offences?
The publication of advertisements for any surrogacy (altruistic or commercial) that
are designed to induce a person to enter into a surrogacy arrangement or that state a
person is willing to enter into a surrogacy arrangement is unlawful.
The receipt of any payment or reward for arranging, or entering into, or agreeing to
enter into, a surrogacy arrangement (altruistic or commercial) is unlawful.
It is also unlawful for any services (for example medical, technical or professional
services) to be knowingly provided under a commercial surrogacy arrangement to
facilitate a pregnancy.
What are the rights of the birth mother?
The birth mother has the right to manage her own pregnancy, giving her the same
rights and autonomy as other pregnant women.
The current presumption in the Status of Children Act 1978 (the SCA) that
automatically presumes the birth mother is the legal parent of the child applies to birth
mothers who have entered into surrogacy arrangements.
The requirement for the birth mother (and other birth parent) to register the birth of
the child applies and the child’s birth is to be registered accordingly, showing the
birth mother (and other birth parent) as the child’s parents.
However, any subsequent court order made after the child is born which transfers
legal parentage to the intending parents prevails over this presumption.
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E.
WHO THE QUEENSLAND MODEL WILL APPLY TO
Who can enter into a surrogacy arrangement?
The Committee did not recommend that there should be restrictions upon who can
enter into a surrogacy arrangement.
Consistent with this, any person (including a heterosexual couple, male or female
same-sex couple or a male or female single person) under the Queensland model is
potentially able to enter into a surrogacy arrangement.
The parties entering into the arrangement may utilise any of the various methods for
conception, such as in-vitro fertilisation, artificial insemination, self insemination as
well as natural conception.
There is no requirement for any of the parties to have (or not have) a genetic
connection to the child or with each other.
Where the conception involves medical intervention, then the provision or otherwise
of the medical intervention is a matter for doctors to determine in consultation with
the parties.
Will there be restrictions upon who can apply to the court for a parentage order?
Consistent with the Committee’s recommendations, the Queensland model does not
impose any restrictions upon who can apply to the court based upon the relationship
status of the intending parent/s; how the birth mother conceived the child; or the
genetic relationships (if any) between the child, birth mother or intending parent/s.
What safeguards are there in the proposed Queensland model?
The Queensland model includes safeguards to protect the rights, wellbeing and best
interests of a child born as a result of a surrogacy arrangement and to ensure the
parties understand the implications of the surrogacy arrangement.
The safeguards discussed below are built into the court process and include:

a requirement for independent counselling;

a requirement for separate independent legal advice;

the establishment of a medical or social need for the surrogacy; and

the setting of age limits.
Where assisted reproductive technology is used to facilitate conception through an
accredited fertility clinic, the parties, under guidelines issued by the National Health
and Medical Research Council, are required to undergo counselling to consider the
social and psychological significance for the person born as a result of the
arrangement and for themselves. This counselling also ensures the parties have a
clear understanding of the ethical, social and legal implications of the arrangement,
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before a service is provided by the fertility clinic. This is separate to the court’s
requirement for independent counselling discussed below.
F.
THE COURT PROCESS FOR TRANSFER OF PARENTAGE
Which court will make the order transferring legal parentage ?
The Childrens Court, constituted by a District Court judge, will be given the authority
to make an order transferring legal parentage..
Who can apply to the Court?
The intending parent/s will be required to make the application to the court.
A copy of the birth certificate issued by the Registry of Births, Deaths and Marriages
must also be lodged with the application together with the relevant court filing fee for
civil matters.
Who is a party to the court application?
All parties to the surrogacy arrangement, that is, the birth mother, the birth mother’s
partner (if any) and intending parent/s are parties to the court application because the
court is to consider whether all parties consent to the making of the order transferring
legal parentage.
Who will be allowed to attend the hearing?
The court proceeding is closed to the public and only the birth mother, the birth
mother’s partner, intending parent/s and their legal representatives will be permitted at
the court proceeding.
Who can access information about the court proceeding?
Access to the court record is not permitted except where the court gives approval for
the release of the court record to any of the parties to the application or the child.
There is a restriction on the publication of any information about the court
proceedings that may lead to the identity of any of the parties to the application or the
child. However, where the child is over the age of 18 and the child consents to the
publication, this restriction does not apply.
An offence will occur if a person publishes restricted information about a court
hearing without the required consent. The maximum penalty will be 100 penalty
units or 2 years imprisonment.
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What information does the court require?
Certain safeguards are built into the court process to protect the rights and interests of
the child and ensure that the parties understand the social, psychological and legal
implications of the surrogacy. This is achieved by requiring the parties to provide
certain information to the court and the court being satisfied of certain things.
These requirements and information are that:

the arrangement falls within the legislative definition of a surrogacy arrangement;

the order transferring legal parentage is in the best interests of the child.
Information from the birth mother and intending parent/s about the proposed care
and other arrangements of the child is to be provided to the court;

the birth mother, the birth mother’s partner and the intending parent/s freely
consent to the surrogacy arrangement (prior to conception) and consent to the
proposed order transferring legal parentage. The birth mother, the birth mother’s
partner (if any) and intending parent/s must have capacity to consent, (that is, they
do not have impaired decision-making capacity). There may be circumstances
where the court is able to dispense with this requirement, for example where one
of the parties has died, is missing or has since the arrangement was made, lost
capacity to consent;

the child has lived with the intending parent/s for at least 28 consecutive days
prior to making the application for the order transferring legal parentage and is
still living with the intending parent/s when the order transferring legal parentage
is made;

the application for the order transferring legal parentage can not be made after the
child is 6 months old;

the birth mother, the birth mother’s partner and intending parent/s have obtained
separate independent legal advice about the implications of the surrogacy before
they entered into the surrogacy arrangement including the right of the child to be
told of the child’s genetic history;

The birth mother, the birth mother’s partner and the intending parent/s have
received independent counselling about the social and psychological implications
of the surrogacy and making of the order transferring legal, including the right of
the child to be told of the child’s genetic history.

the parties are required to lodge with the court a report that is prepared after the
birth of the child, from a counsellor, about each of the parties’ understanding of
the psychosocial effects of the surrogacy and the implications of the surrogacy
including if the birth mother does not relinquish the child and the right of the child
to be told of the child’s genetic history;

there is an established medical or social need for the surrogacy. This includes:
where in the circumstances, the intending parent/s is unlikely or unable to become
pregnant, is unable to carry a pregnancy or give birth; or if they did conceive a
child, the child would be affected by a genetic abnormality or a disease; or the
intending parent is at risk if she falls pregnant or during child birth she or the child
is at risk. This requirement covers both a male or female same-sex couple.
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
the birth mother and intending parent/s are 25 years of age at the time the
surrogacy arrangement was made; and

the intending parent/s are Queensland residents.
Who is responsible to pay the legal costs and costs of counselling and reports?
This is a matter for the parties. However the birth mother’s reasonable expenses that
are allowed under a surrogacy arrangement may include the birth mother’s legal costs,
costs of counselling and the report costs. In most cases it is likely the intending
parent/s will pay both their costs and the birth mother’s costs.
What about a surrogacy arrangement that was made before this legislation
comes into effect?
The Government acknowledges that there may be some children who were born as a
result of a surrogacy arrangement made prior to commencement of the legislation.
This model allows the court to extend the time limits for making an application. This
extension applies for children who are born before commencement of the legislation
and expires 2 years after the commencement date of the legislation.
When the law is passed that decriminalises altruistic surrogacy, parties to altruistic
surrogacy arrangements will not be open to any subsequent prosecution even when
they apply for an order transferring legal parentage.
What does the order transferring legal parentage mean?
An order transferring legal parentage has the effect of permanently transferring the
parentage of the child from the birth mother to the intending parent/s. This means that
the birth mother ceases to be recognised in law as the parent of the child and the child
is no longer the child of the birth mother. The intending parent/s is recognised in law
as the parent/s of the child and the child is the child of the intending parent/s. A new
birth certificate will issue showing the intending parent/s as the child’s parent/s.
What other orders can a court make?
The court is able to make an order about the child’s name or any other consequential
or ancillary order that the court thinks fit in the interests of justice or for the welfare
and best interests of the child.
If there is a multiple birth, the court cannot make an order transferring the legal
parentage unless it also makes an order transferring the legal parentage about each of
the other birth siblings of the child to the same intending parent/s.
Where one of the intending parents dies prior to the court proceedings, the court may
include the name of the deceased intending parent in the order transferring legal
parentage.
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Can the order transferring legal parentage be set aside?
Under the Queensland model, an order transferring legal parentage can be discharged
where the court is satisfied there has been fraud, duress or other improper means or
the consent of a party was obtained through fraud, duress or other improper means.
Only a party to the original application, the child or the Attorney-General can apply to
the Childrens Court (constituted by a District Court Judge) to have the order
transferring legal parentage discharged.
The court can only make an order to discharge an order transferring legal parentage if
it is in the best interests of the child. The same confidentiality provisions apply to a
discharge proceeding as to a proceeding seeking an order to transfer the legal
parentage.
The effect of the discharge order is that the parties and child are in the same position
as if the order transferring the legal parentage was not made.
Is there a right to appeal against a decision to refuse to make a parentage order?
A party will have a right of appeal to the Court of Appeal against the refusal to make
the order transferring legal parentage order or to discharge (or refusal to discharge) an
order to transfer legal parentage. An appeal will be by way of a rehearing.
G.
REGISTERING THE ORDER TRANSFERRING LEGAL
PARENTAGE
Can the order transferring legal parentage be registered with the Registry of
Births, Deaths and Marriages and a new birth certificate issued?
The Queensland model allows the order transferring legal parentage to be lodged with
the Registrar of Births, Deaths and Marriages (BDM).
When the order transferring legal parentage is lodged with BDM, the new details of
the intending parent/s and name for the child are recorded. A notation is made on the
register that will link the new record with the original record. The original record is
closed.
Who provides the new information to BDM?
The intending parents who want to record the new parentage details provide a copy of
the sealed order transferring legal parentage to BDM as well as the application that
includes specified information, such as: date of the order; full name, address and
occupation of each of the intending parent/s; name of the child prior to the order and
after the order; terms and consequences of any ancillary orders; details of the date and
place of birth of the child; and name and address of the child’s birth parents.
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What information will be shown on the new birth certificate?
The birth certificate of the child includes details of the intending parent/s, the new
name of the child and other particulars that are provided to BDM by the intending
parent/s.
The new birth certificate does not include any information that will provide a link to
the original birth record.
Who can access details of the original birth certificate?
The intending parent/s, the birth mother, the birth mother’s partner (at the time of the
surrogacy) and the child (when the child is aged 18) are able to access information
from the original birth record. A child under the age of 18 years is able to access
information from the original birth record where the birth mother, birth mother’s
partner (at the time of the surrogacy) and intending parent/s consent to the release of
this information.
Where the child is 18 years and applies for a copy of the child’s birth certificate, the
child will receive an addendum with the birth certificate to advise that there is
additional information about their birth record. Information about counselling services
will be provided to the child at the same time as being provided with this addendum.
Will the BDM register recognise same-sex intending parents?
The BDM register is to be updated so that same-sex parents can be recorded as:
mother/father; mother/parent or the father/parent of the child.
H.
REGISTER OF GENETIC INFORMATION
The Standing Committee of Attorneys-General at their April 2009 meeting decided
that a working group develop a discussion paper on the national model for the
harmonisation of donor registers in consultation with Health and Community Services
Ministers.
The Government will give further consideration to the most appropriate future
arrangements for the collection and retention of information about genetic parentage
for children born of surrogacy arrangements having regard to the deliberations of the
Standing Committee of Attorneys-General on a national model.
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I.
HOW TO PROVIDE COMMENTS ON THE QUEENSLAND MODEL
Queenslander’s views are being sought about the proposed model for surrogacy.
You can provide your input as follows:

By email to: legalpolicysubmission@justice.qld.gov.au; or

By posing it to: Director, Strategic Policy, Department of Justice and
Attorney-General, GPO Box 149, Brisbane QLD 4001
The Queensland Model for surrogacy is published on the Department of Justice and
Attorney-General community consultation website:
http://www.justice.qld.gov.au/33.htm
The closing date for feedback is Friday, 31 July 2009
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