Thursday, September 5, 2013

Why children south of the Murray are different

One of the greatest difficulties for anyone contemplating surrogacy are the different rules in different places about what can and can't be done: what might be legal in one place and accepted as best practice might be considered as a criminal offence somewhere else.

Many clients of mine assume before they get to my office that there is one set of Australian laws concerning surrogacy and that the laws here must be like the laws overseas, and vice versa. None of that is true. We have 9 systems of law in Australia governing surrogacy, plus some additional requirements of some of the clinics that are not written up in any statute books, plus different laws for those contemplating surrogacy overseas.

To give an example of absurdity: In Victoria there is only recognition under Victorian parentage orders for children born in Victoria. Too bad if the parentage order is made elsewhere. There is currently no ability to alter the birth register of a child born in Victoria when the order is made interstate. To make the situation seem even more Pythonesque, when a parentage order is made somewhere in Australia, those parents are recognised for all purposes under Australian law as the parents. The Family Law Act tells us so. However, although those parents will be recognised as the parents, for example under a NSW order, if their child were born in Victoria there is no obvious method (except possibly costly court proceedings that might involve a constitutional point) for them to be named on the birth register in Victoria!

Silly stuff. I have written to the Attorneys for both NSW and Victoria asking for changes. Let's see how long it takes.


  1. Silly stuff indeed!

    So what's your thoughts on hetro couples who are the biological parents in regards to parenting orders(irrespective of the state we live in)? I'm aware of same sex couples going this route, but are there any benefits you're aware of other than both parents being recognised - which in our case we already are as we're both on the (overseas) birth certificate. Not withstanding the entire issue of overseas birth certs even being recognised here... My view is they're recognised for migrants etc, and in some ways the Aust Citizenship certificate is more important. Love to know your views!


  2. From this post "Why children south of the Murray are different" I realized why children of the said state are different! Thanks for your such a good post. Regards from Express Services AND Counselling Services