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The modern family: Is the law keeping up?

The modern family: Is the law keeping up?

By LIV Professional Development

Family Court 


It's been more than two years since Chief Justice Bryant of the Family Court stated in a lecture that she wanted to drive legislative change in the area of commercial surrogacy as a way of combatting the "dark side" of this issue – namely, the large percentage of Australian citizens using foreign surrogates to carry their children, which has in some cases led to rejection of children born with birth defects and mistreatment of surrogates.

Despite her passion for changing the legislation – which currently makes it illegal in all Australian states and territories for a surrogate to gain financially from carrying another person's child – the law has not budged. This has made it more difficult for couples to find a local surrogate, leading hundreds to go overseas with the hope of finding a woman who will carry their child.

The conversation has heated up once again following the recent decision of the full Family Court to reject a couple's request for declaration of legal parenthood of their daughter, who was born through a surrogacy arrangement with a woman overseas. Their decision, published in early September 2017, upheld the ruling of Judge David Berman from 2015, which gave the couple the right to make key decisions for the child (e.g. healthcare and schooling) and responsibility for her care, but would not recognise them as her legal parents.

Given that Australians now seek approximately 250 babies per year from overseas surrogates (NB: it is illegal to do so in NSW, Queensland and the ACT), this decision leaves countless families unsure of their child's statehood and with very little legal recourse. The three judges from the Family Court who issued this decision included Chief Justice Bryant, who joined her counterparts in affirming that the Court did not have the ability to fill the gap in the law with their decision – this needs to be done through new legislation.

One thing this issue makes clear: the work of a modern family lawyer is ever-changing and evolving, and it is critical to stay up to date on major decisions such as this and how they may affect your clients. As surrogacy continues to grow in popularity for women unable to bear their own child, the call for simpler surrogacy arrangements in Australia will likely increase as well.

Hear more about current parenting cases and gain a better understanding of the changing landscape of modern family law at the Parenting Workshop on 17 October. This workshop is part of the broad Family Law Stream of our new Academy Series. Get a comprehensive education on family law and save 20% on the cost of all four workshops by registering for the full stream here.

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