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LIV comments regarding surrogacy inquiry

LIV comments regarding surrogacy inquiry

By Sarah Bright

Advocacy Child Welfare Ethics Human Rights LGBTIQ 


Surrogacy is not a new concept. ‘Traditional surrogacy’, involving the egg of a surrogate mother and the sperm of the Commissioning (intended) father has been around for centuries. Technological advancements now make it possible for gestational surrogacy, which involves an embryo created by the intended father’s sperm and the intended mother’s egg (or donor egg and/or sperm) to be implanted in a surrogate.

Gestational surrogacy means that it is quite possible for neither the commissioning parents nor the surrogate mother to have any genetic link with the child. When the surrogacy arrangement has an international, or even an interstate element, complicated questions arise in relation to:

1. The legal identity of the child’s parents;
2. Which process should be followed to determine the child’s legal parents (parentage); and
3. The child’s nationality.

Resolving these questions often involves applying legal rules that might be quite different in the home country of the surrogate and the home country of the intended parents. “It is very likely that there will a serious conflict of laws that will have consequences for matters such as nationality and immigration”

In some cases this results in children born of gestational surrogacy arrangements being left, as one UK Judge stated, marooned, stateless and parentless” in a legal sense.

Annexure 1 - Comparative Table of law around Australia
Annexure 2 - Comparative Table of law around the world

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Sarah Bright, Senior Lawyer, Family Law Section

T: 03 9607 9365


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