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ADOPTION & SURROGACY

Family Lawyers

To adopt a child is to take on the role and legal responsibilities of a parent, which the child’s natural parents (sometimes referred to as birth parents) will no longer hold. Adoption is an extremely significant decision to make, both for adoptive and birth parents, as it involves the complete transfer of legal rights and responsibilities relating to a child’s safety and future.

Adoption in Australia is very carefully regulated by local, state and Federal authorities, to ensure that the adoptive parents will safeguard the rights, safety and best interests of the child or children they take into their care. In New South Wales, adoptions are overseen by the Department of Family and Community Services.

The law recognises that in some cases – for instance, in the wake of a tragedy in an extended family – adoption may be necessary to keep a child secure among relatives and other people they know and trust. In other situations, adoption may represent an opportunity sought by a couple – including a same-sex couple – or single people to become parents to children, where they cannot, or choose not to, have children themselves. Also, parents who decide they cannot, or do not wish to, support a newborn child, may turn to adoption as a way of finding a family situation which will allow the child the kind of life they cannot offer.

With these situations in mind, and always upholding the best interests of children above all, the law recognises three broad kinds of adoption:

  • Known child adoption: A child is adopted by relations, a carer or a stepparent. This may be feasible and harmonious, depending on the relationship that exists between the child and the relation, carer or stepparent. However, the circumstances of known child adoption have to be considered extremely carefully: if both birth parents are still alive and still have an acceptable relationship to the child, the law prefers not to break their legal bonds. For instance, if birth parents divorce, there may indeed be emotional hardship, but in the end no legal reason why a birth parent’s legal connection and responsibility to their child should be broken, in favour of the other parent’s new partner. Parenting orders, which are legally binding, may be a more appropriate option, if both birth parents still have good reason to remain in contact with their child.
  • Local adoption: A child is adopted within the Australian community, not necessarily by parents who know them or their background. Local adoptions are regulated and overseen extremely carefully by New South Wales authorities and only a small number of cases are approved each year. This is because the appropriateness of the adoptive parents, and of the adoption itself, must be considered in great detail, with the major focus being the best interests of the child. As in known child adoptions, the law often prefers not to break the legal connection between children and birth parents if their relationship is not fundamentally at risk. Long-term foster care may be the more appropriate option. However, some carers may believe that adoption is the most effective way to complete and safeguard the commitment they have made to a child, for whom they feel responsible.
  • Intercountry adoptions. A child is adopted into an Australian family from overseas. Australia is a signatory to the Hague Convention on Intercountry Adoption, which upholds the best interests of adopted children internationally. Responsibility for regulating and overseeing intercountry adoptions is co-ordinated between the Federal Attorney-General’s Department and the Community Services departments of each state and territory. Australia holds open adoption agreements with more than a dozen countries across Asia, South America and Europe. Parents may wish to adopt a child from overseas for a variety of reasons, perhaps because they cannot or do not wish to have a child themselves, or perhaps out of a wish to offer a child a better life than they might receive in their birth country, or perhaps a combination of reasons like these. Adoptive parents may well not know the background of the prospective adoptive child in detail. As in local adoptions, the appropriateness of the intending adoptive parent or parents has to be assessed extremely carefully.

In New South Wales, eligibility to be an adoptive parent extends to married couples, de facto couples (including same-sex couples) and single adults irrespective of their sexual orientation. In all cases, states authorities (and Federal authorities in the case of intercountry adoptions) will assess the appropriateness of the potential adoption in question, considering factors such as criminal records, any history of offences concerning children, and the capacity to provide a safe environment for the adopted child.

It is illegal to arrange adoptions privately. All adoptions must be overseen and recorded in law, as the law regards the best interests of children as one of the greatest social responsibilities.

Adoption & Surrogacy

When a child is adopted, all rights over that child pass to the adoptive parents, and the child acquires all the rights that come with being born into the adoptive family, which include the right of inheritance. The child’s natural parents (‘birth parents’) give up all their rights over the child.

Legal Advice on Adoption

Diamond Conway Family Lawyers have years of experience in the legal workings of adoption, both within Australia and overseas. The legal team can advise you not only on the technical side of the process – whether you are considering adopting a child locally or from another country – they are also known for dealing sensitively and carefully with the legal issues surrounding integrating an adopted child into your own family legal situation, which may be one of the most important decisions in your family life. For advice on any aspect of adoption, call Diamond Conway Family Lawyers on 02 9222 8000.

Surrogacy

Surrogacy is a way for intending parents to bear children, with the pregnancy being carried by a mother who is not involved in the relationship, and who usually agrees not to have legal responsibility for a child after birth.

Most often, surrogacy is seen as a solution for couples – including same-sex couples – or single people who wish to have children but who cannot, or do not wish to, become pregnant themselves, and who have not found success through other methods, such as IVF or adoption. The surrogate mother who carries the pregnancy may choose to do so without payment, but usually the intending parents at least cover her medical costs, as well as paying compensation for her role.

Surrogacy is a complex and emotional matter and has attracted a great deal of media attention. Surrogacy is very carefully regulated under Australian Family Law and in recent years some intending parents have felt the need to arrange surrogate pregnancies overseas. Unfortunately, such decisions have often caused more difficulty rather than less. It is possible to arrange a surrogate pregnancy safely and legally in Australia, keeping stress and concern to a minimum, and safeguarding the best interests of children, intending parents and surrogate mothers.

The website of Surrogacy Australia provides helpful information on all aspects of the Surrogacy process. However, if you are an intending parent who is considering turning to Surrogacy, or if you are a surrogate mother yourself, with all the emotional and legal questions surrounding the issue, compassionate and knowledgeable legal advice can be important in making your rights and responsibilities clear. At Diamond Conway, we have a respected record of expertise in Family Law, with Accredited Specialists on our legal team and special experience in laws surrounding children, adoption and family relations overseas.

The priority of Surrogacy laws in Australia is to uphold the best interests of children. Surrogacy is a particularly complex family situation and if it is not handled carefully, with expert medical and legal advice, it can create a difficult family environment for a child. However, at Diamond Conway we are respected for our dedication to safeguarding children’s best interests, and to helping parents towards agreements that benefit all parties fairly. We are just as committed to doing this in Surrogacy cases as in any other Family Law matter. You can rely on our understanding and our professionalism at all times.

For expert legal advice on Surrogacy and any other form of parenting plan, call the Diamond Conway Family Law team on 02 9222 8000.

Surrogacy laws in Australia

Surrogacy is legal in Australia, although it is rigorously controlled. The process calls into question parenting rights and many deeply emotional issues. Surrogacy can only take place in Australia if it is overseen by an accredited IVF clinic, and intending parents cannot advertise for a surrogate mother. In most cases, the surrogate mother will be a person close to the intending parent or parents, such as a close and trusted friend, or another family member.
There are two kinds of Surrogacy:

  • Gestational Surrogacy, in which the surrogate mother is not genetically related in any way to the child. Instead, she is implanted with a fertilised egg supplied by the intending parents or parent. Fertilisation is usually achieved via IVF involving different combinations of sperm and egg, depending on the intending parents’ circumstances: egg and sperm could come from both intending parents, or either egg or sperm could be purchased or donated, and combined with the egg or sperm of one of the intending parents. In every case, however, at least one element – egg or sperm – must come from one of the intending parents, and the surrogate mother cannot supply the egg or obtain the sperm herself. In Australia, only this form of Surrogacy is permitted and regulated by law.
  • Partial Surrogacy, in which the surrogate mother provides the egg and is fertilised with sperm from the intending father. This means that the surrogate mother is genetically related to the child, but will still relinquish legal responsibility after the birth. This form of Surrogacy is not legally practised in Australia.

Surrogacy Overseas

Some intending parents elect to seek the services of commercial Surrogacy organisations overseas. Several of these cases have been reported in the media in recent years. The legal issues surrounding Surrogacy and adoption and even abandonment of children overseas are very complex, and always involve the laws of the country where the Surrogacy has taken place. Intending parents who are considering engaging in Surrogacy overseas should consider their options, their responsibilities and the absence of cover for overseas liability under Australian law extremely carefully.

Who is Involved in Surrogacy?

Intending parents, or a single intending parent, who cannot conceive a child
Surrogacy is one of several solutions for intending parents who experience problems in having children, either because of illness or genetic problems, or because of their personal circumstances. The intending parents might be a heterosexual couple, or a same-sex couple, or a single person of either sex – there can be any number of reasons for seeking to have children via a surrogate. Surrogacy is often seen as an alternative to other methods of having children, such as IVF, if these are unsuccessful.

The Surrogacy Mother

Whatever the situation of the intending parents, the other person closely involved in Surrogacy is the surrogate mother, who will give the child to the intending parents after the birth. In Australia, this person will usually be a trusted friend or family member of the intending parents or parent, or at least a person carefully chosen and agreed upon by all parties, under the auspices of an accredited IVF clinic. The surrogate mother may not be technically related to the child she is carrying, but the bond between them may well be as strong as in any traditional pregnancy. In Australian law, a surrogate mother has the right to choose to keep the child within 6 months of the birth.

In Australia, certain regulations apply as to who can be a surrogate mother and how she relates to the intending parents. The surrogate mother must already have had children (although she may not necessarily intend to have more children of her own in the future). As the emotions of all involved in Surrogacy are highly intense, the surrogate mother and the intending parents must also enter into counselling and psychological testing. Medical supervisors will offer expert opinions on the suitability of all parties to engage in the Surrogacy process, and on potential psychological problems and treatments.

Accredited IVF Clinics

It is absolutely essential that the intending parents and the surrogate mother reach a clear agreement about their Surrogacy plan before proceeding. In Australia, by law every Surrogacy case must be handled by an accredited IVF clinic, where intending parents and the surrogate mother can seek expert medical and family-planning advice.

How Much Does Surrogacy Cost?

In Australia, Surrogacy is not a commercial transaction. Intending parents are expected to pay the medical costs of the surrogate mother, which will be those of a normal pregnancy. The intending parents or parent will also bear the cost of the processes that lead up to the surrogate pregnancy, such as IVF and sperm or egg donation, but some of these may be covered by Medicare.

Diamond Conway – Legal Experts for Adoption & Surrogacy Matters

At Diamond Conway, we understand how distressing it can be to experience problems in having children, but our legal team is respected across the profession for the understanding and dedication they show to every client. The legal processes surrounding Surrogacy might be complex, but we are ready to advise and assist you through every stage, whether you are an intending parent or a surrogate mother.

For expert legal advice on Surrogacy and any other form of parenting plan, call the Diamond Conway Family Law team on 02 9222 8000.

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DIAMOND CONWAY LAWYERS
Level 7, John Hunter Building
9 Hunter Street
Sydney NSW 2000

Phone: +61 2 9222 8000
Fax: +61 2 9222 8008
Email: familylaw@diamondconway.com.au
DX: 707 Sydney