The status of parents in a surrogacy proposal

The Status of Children Act 1969 governs the legal status of children, including those born as a result of a surrogacy arrangement and/or as a result of an Assisted Human Reproductive (AHR) procedure.

The Staus of Children Act distinguishes between ‘partnered women’ and ‘women who are acting alone’:

• a ‘partnered woman’ is someone who is married, in a civil union or de facto relationship (including same sex relationships)
• a ‘woman acting alone’ means a woman who is not a partnered woman or who is a partnered woman but has undergone an AHR procedure without her partner’s consent.

An AHR procedure is defined in the Status of Children Act and means reproduction not through sexual intercourse.

The Status of Children Act set out various ‘rules’ about who is a parent in various situations and this would include a surrogacy situation.

A woman who becomes pregnant as a result of an AHR procedure is always the child’s mother regardless of whether to ovum or embryo was produced by or derived from the ovum or embryo of another woman (s17).

A partner of a woman who has consented to the AHR procedure is a parent of the child regardless of whether the semen was provided by another man or ovum or embryo was produced by or derived from the ovum or embryo of another woman (s18).

A donor may become a parent in the following situations:

• partnered woman
  • a woman who provides genetic material is never a parent of the child unless she is the birth mother’s partner at the time of conception (s19)
  • a male donor is not for any purpose a parent of the child (s21)
• woman acting alone
  • a woman donor is not a parent unless she becomes the partner of a woman acting alone after the time of conception (s20)
  • a male donor is not a parent unless he becomes the partner of a woman acting alone after the time of conception (s22).

If a child is conceived by sexual intercourse between the surrogate mother and the intending father, the man will be the child’s legal father.

Section 6 of the Adoption Act provides that prior approval is not needed where the child is in the home of one of the child's parents and a step-parent of the child or where the child is in the home of a relative of the child. A relative is defined in relation to any child as including a grandparent, brother, sister, uncle, or aunt, whether of the full blood, of the half-blood, or by affinity.

Although both intending parents may have provided genetic material they are not parents of the child unless one of the rules about donors of genetic materials applies. Section s6(4)(c) therefore should not be used in surrogacy situations to sanction placement and, unless the surrogate mother is otherwise a relative of the child, social worker approval for such placements for the purposes of adoption would always be necessary - a child may be in the home of the commissioning parents without approval if they fall within the definition of a relative of the child.