Surrogacy Process- Same Sex Defacto Relationship
Author: Alfonso Layson
Brett and Samuel were in a same sex de facto relationship. For several years the couple had discussed starting a family. They considered their options and researched both the adoption and surrogacy process. Ultimately both Brett and Samuel decided that they wanted to have a child that was biologically their own.
Brett and Samuel’s mutual friend Cathy knew of their desire to be fathers, and in an act of incredible generosity offered to act as their surrogate. Brett, Samuel and Cathy agreed to use IVF to achieve a pregnancy.
Brett and Samuel contacted our office to obtain legal advice regarding the surrogacy process. They wanted to know the legal requirements surrounding surrogacy as well advice in obtaining a parenting order so that they would both be recognised as the parent of the child. We first advised Brett and Samuel that it was illegal in NSW to enter into commercial surrogacy, meaning that they were not allowed to pay the surrogate a fee for having their child, except to pay the reasonable expenses associated with the surrogacy such as medical and legal expenses.
We drafted the surrogacy agreement for Brett, Samuel and Cathy which detailed the roles of the surrogate and the intended parents. The agreement defined what financial support Brett and Samuel were to provide to Cathy as well as providing some contingency clauses should there be complications with the pregnancy. After signing the agreement Brett, Samuel and Cathy commenced the IVF process. This involved all parties obtaining the required counselling prior to the procedure, and the counsellor prepared the appropriate report.
After a few IVF cycles, Cathy became pregnant, and Brett and Samuel financially assisted Cathy with all the medical costs as outlined in their surrogacy agreement. After a trouble-free pregnancy, Cathy gave birth to a girl who Brett and Samuel named Olivia. After the birth Cathy obtained post pregnancy counselling which is a requirement under the Surrogacy Act 2010 (NSW), and then placed Olivia in the care of both Brett and Samuel.
Brett and Samuel attended our office and instructed us to file an application for a parentage order with the Supreme Court of NSW. This application would legally allow both Brett and Samuel to be the recognized parents of Olivia. We filed the transfer of parentage application at the Supreme Court of NSW when Olivia was 30 days old. The application was filed with affidavits by Brett, Samuel and Cathy and included copy of the surrogacy agreement and the statements of independent legal advice.
Within two weeks the transfer of parentage Order was granted. The Court advised in its reasons for making the Order that they were satisfied that the surrogacy arrangement was not commercial in nature and that the surrogacy agreement, though not legally binding, satisfied the principles of the Surrogacy Act 2010 (NSW).
If you need help with a Surrogacy Agreement please contact our expert Surrogacy Lawyers Sydney today. We have offices conveniently located through out Sydney, Surry Hills, Mosman & Parramatta.
For further information or assistance please contact Sarah Bevan Family Lawyers.
All names and identifying features have been changed for privacy reasons in our case studies. These case studies only have basic detail in them, and you should always bear in mind that every case is unique. These case studies are examples only, and cannot be applied to your circumstances without consideration of all relevant facts.