Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy

Publication Type:
Journal Article
Australian Journal of Family Law, 2013, 27 (2), pp. 135 - 169
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The Australian approach to legal parentage is particularly complex in the context of trans-national surrogacy arrangements. Australian law does not generally recognise parental status granted in other jurisdictions and overseas commercial surrogacy arrangements are excluded from specifically enacted domestic surrogacy laws that enable transfer of legal parentage in certain circumstances. Thus Australian administrators and judges have had to grapple with the claims of Australians trying to return with a foreign born child with whom they usually have a genetic link and a primary caregiving role, but no legally recognised relationship. This recognition has occurred through ad hoc liberalisation of interpretations of `parent and `child in particular pieces of legislation, which has left parents in a state of ambiguous, labyrinthine and `limping legal parentage. This article presents an analysis of the problems posed by the current lacunae before going on to explore the risks and potentiality of possible reforms to federal law. The analysis in this article is informed throughout by my own view of surrogacy as a valid method of family formation which should be respected. The State has a legitimate objective in trying to ensure that surrogacy is undertaken with the informed and continuing consent of all the parties, and most particularly the surrogate, given the unique impact and significance of the gestational relationship. This must be balanced with the need to accord certainty of parental status to children being raised in surrogacy families.
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