Surrogacy and the Law (From establishing eligibility to securing a - PowerPoint PPT Presentation

Surrogacy and the Law (From establishing eligibility to securing a parentage order) PRESENTED BY: Lucy Thomas Director, Paterson & Dowding Family Lawyers and Mediators

Thin inking about a surr rrogacy agreement? Patience Budget Faith Doctors Social Scientists Lawyers WA Reproductive Technology Council Family Court of WA Organisation Cooperation

A complex le legal fr framework Surrogacy Act 2008 Surrogacy Regulations 2009 WA Reproductive Technology Council Family Court (Surrogacy Rules) 2009 Surrogacy Directions 2009 Family Court of Western Australia

Threshold Cri riteria 1. Only altruistic surrogacy is allowed 2. All commercial surrogacy arrangements are illegal - fine $24,000 or imprisonment for 2 years 3. The payment of reasonable expenses incurred because of the surrogacy agreement is permitted 4. Surrogacy arrangement must be made before the birth mother becomes pregnant

Eli ligibility ✓ Two persons of opposite sex in a married or de-facto relationship or a woman who is unable to conceive a child due to medical reasons (not linked to age), or able to conceive but child would be likely be affected by a genetic abnormality/ disease. ✓ Eligible person- a woman who is unable to conceive or carry a pregnancy or able to conceive but child likely to be affected by a genetic abnormality/disease ✓ The arranged parents must reside in WA . ✓ At lease one of the arranged parents is 25 years of age. ✓ The surrogate/birth mother must be at least 25 years of age and have previously given birth to a live child .

Getting surrogacy approved by y the WARTC 1. A written agreement signed by: the a) arranged parents, b) the birth mother and her partner, and c) any sperm or egg donor and their partner. 2. Each of the parties to the agreement must: • Undertake counselling (individual and joint) Be assessed by a clinical psychologist and confirmed to be suitable • • Receive independent legal advice 3. The birth mother and any donor must also be be assessed by a doctor and confirmed to be medically suitable 4. 3 month cooling off period prior to Council approval

In Independent Legal Advice Independent legal advice is defined as: • Legal advice provided by a person who is chosen by the person receiving the advice; and • Is not providing legal advice to the arranged parents as well as any other person required to receive advice. It is important to note that the terms of a surrogacy agreement are not enforceable save for an obligation to pay for, or reimburse reasonable expenses.

How lo long wil ill it it take to get a surrogacy agreement? In straightforward matters involving experienced lawyers and organised clients, who have explored and resolved all material matters in the course of counselling and ongoing conferral prior to the engagement of lawyers, an agreement could be finalised within say 4-8 weeks .

What gets covered in in a surr rrogacy agreement? A surrogacy agreement can cover a wide range of matters! Antenatal care Dietary requirements Type and place of delivery Pain relief during birth Expenses Who will cut the umbilical cord Who will visit the hospital

Some bigg igger decisions in include: ➢ Will the child be introduced and otherwise have any contact with the birth mother’s/donor’s other children? ➢ What information exchange, if any, has been agreed between the arranged parents and the birth mother/donor concerning the child in the future? ➢ Has there been any consideration given to when and by whom the child, (if at all), should be informed as to the circumstances of his/ her birth? ➢ Arrangements for registration of birth of baby ➢ Dispute resolution

Legal Parenthood – Getting it it transferred What you need to know: The birth parents will remain the legal parents and named on the birth certificate until parental responsibility is transferred to the arranged parents.

Steps to a Parentage Order 1. An application must be made between 28 days and 6 months after the baby’s birth. 2. The pre-conditions must be met (Council approval, resident in WA, 25 years age, counselling, separate legal advice re effect of order etc). 3. The child must be with the arranged parents when the application is lodged in the Family Court. 4. The birth parent must consent to the order. (Exceptions – deceased, uncontactable or not the genetic parent and one of the birth parents is the genetic parent). 5. The parties must have agreed an approved plan. 6. It must be in the best interests of the child for the court to make the order. 7. Dealt with in closed court. 8. Compliance with all requirements >prompt court determination.

General Tip ips Engage a lawyer with surrogacy experience. Choose your surrogate very carefully and explore their views early on in relation to matters that may be of a sensitive nature, e.g. termination in event of a detected abnormality. Consider all the practicalities and possible eventualities before engaging in counselling, so that all relevant matters may be canvassed and settled upon, before engaging the lawyers. Prepare for your first legal consult- have all the details referred to above, at the ready so as to reduce the amount of time you need to spend with your lawyer and to assist them with the preparation of the agreement in a timely manner. Document management- keep all the relevant documents/ reports /information/dates of appointments etc in one place and at the ready.

Questions?