What is a family? What is a family?

What is a family?

7 November 2017 | Surrogacy

A mother, father and their biological offspring? 
A mother, her female partner, their sperm donor and the child they created together? 
A father, his male partner, their egg donor, their surrogate and the child they created? 
A man, woman, egg donor, sperm donor, their surrogate and the child they created?
All of the above?

Scientific advancements in assisted reproduction, increased availability of donor material and growing cultural acceptance of surrogacy means that the definition of family, or who is  a parent, is evolving more rapidly than legislation can keep pace with.

The desire to reproduce, to raise a child is innate in most humans.  People have demonstrated that money, geography, language and culture are no barriers to achieving their goal to have a child as evidence by the increase in international surrogacies.

Where legislation does not keep pace with scientific advancements and changing cultural norms, unintended outcomes result, even in developed countries.

Surrogacy is the act of carrying and giving birth to a child in order to give that child to another person as the intended parent.

Australia’s surrogacy laws are a patchwork of individual state acts, however, similar principles apply across the states:

  • The intended parents must demonstrate they cannot either conceive or carry a child;
  • A surrogacy arrangement is entered into prior to conception which allows the intended parents to apply for a parentage order after the child’s birth;
  • Until a parenting orders is made, the surrogate is the legal parent;
  • A parentage order allows the intended parents to be legally recognised as the child’s parents after the child’s birth;
  • Surrogacy must be altruistic; it cannot be a commercial arrangement.

In many respects, Australian law has addressed the needs of the community by enacting legislation which provides a pathway for the intended parents and the surrogate to give effect to their agreement by granting legal recognition to the intended parents.

What if the law does not keep pace?

Despite developments in many European countries, surrogacy in Sweden is not regulated.

If intended parents engage a surrogate in Sweden, it is the surrogate that will be recognised as the child’s legal parent at birth.  The only way for the intended parent to become the legal parent is through the process of adoption from the surrogate to the intended parent.  Adoption requires the consent of the surrogate and the other intended parent.

Whilst this may not seem to be an onerous hurdle, if consent to adopt is not given, the surrogate remains the legal parent of the child. 

In a Swedish case, a heterosexual couple who could not carry their own child asked the husband’s sister to be their surrogate.  Genetically, the child belonged to the husband and wife.  The husband’s sister’s role was limited to that of surrogate. 

The surrogate gives birth to the child. 

Before the adoption process is commenced, the husband and wife separate.  The husband withdraws his consent to the wife adopting the child.

The surrogate and her brother are deemed to be the legal parents of the child. 

The biological mother of the child has no legal standing as the child’s parent.

The biological mother cannot look to the adoption laws to remedy the impasse if consent is not granted.

Developments in Australia such as surrogacy agreements, obligations to obtain legal advice and mandatory counselling prior to conception assist to minimise the risk of a withdrawal of consent by the surrogate.   

The debate in Sweden on developing surrogacy laws continues, however this case is a reminder that people will continue to search for new ways to create a family and if legislation cannot keep up with societal changes, it can have devastating consequences.

Allison Caputo

Allison Caputo

Special Counsel