Surrogacy in Australia

From the blog Above the Law:
A Terrible Ruling Leaves Thousands Of Children Without Legal Parents
Even the judge acknowledged that his ruling was deeply problematic.


" The Bernieres ... were an Australian couple who couldn’t conceive the old-fashioned way. Unable to have a child without help, they journeyed from their home in Melbourne to a fertility clinic in India. The hopeful parents-to-be were advised that their best chances to conceive were to use an anonymous egg donor, and a gestational carrier. The couple entered into the arrangement in 2013, and in 2014 their child was born. They brought a baby girl back to Australia. But they made the mistake of asking a Victorian court to bless the arrangement, and declare them legal parents of their own child. The court did not feel so inclined.

Justice Berman, the trial judge, agreed to let the child remain in the Bernieres’s care; however, he determined that they could not be found to be parents of the child because they did not meet the terms of the Victorian surrogacy statute, Section 60HB of the Family Law Act. The narrow statute requires that (1) surrogacy only be undertaken through a Victorian registered ART provider, (2) the procedure must be carried out in Victoria, and (3) the arrangement can only be altruistic (the surrogate cannot be paid). Further, the judge determined that without specific authority to find the Bernieres as parents to the child, his hands were tied.

Despite the fact the Mr. Bernieres was both the biological and intended parent of the child, Justice Berman determined that Mr. Bernieres could not be declared a parent to the child. But unfortunately, that judgment meant that literally no one was a legal parent of the child.

Justice Berman acknowledged that his ruling was deeply problematic for the child at issue, and noted the need for “urgent legislative change.” Two years later — and with no legislative change in sight — the case went up on appeal before the full panel of the Australian Family Court. In September 2017, the Family Court made its ruling. The Court affirmed the judgment that the judiciary had no authority to declare the Bernieres as the legal parents of the child. Here’s the order. It’s a megabummer.

Thousands Of Children Affected. The broader tragedy is that the Bernieries did not represent an isolated case. Experts estimate that 250 Australian families conceive through surrogacy arrangements abroad each year. So the implication of this ruling is that there are thousands of children in Australia with no legal parents."