Alternatives to Adoption and Surrogacy in Australia – Family Lawyers

Most of our work at Sarah Bevan Family Lawyers is helping people following a separation.  But a significant amount of our work, especially in recent years, involves helping people with a new beginning of the birth, or adoption, of a child.

Modern technology has made assisted reproduction much more accessible, and it is always such an honour and pleasure for us to help our clients with the legal aspects of this process.

We see people with such varied and interesting circumstances and recently we helped a couple with a unique situation.

Nikola and Jakub are a Czech couple in their early forties, who had moved to Australia about 10 years earlier on permanent residence visas.  For several years they tried unsuccessfully to conceive a child.

When they were in their mid 30’s they decided to commence the surrogacy process.

They were very lucky to find an altruistic surrogate quickly and easily when Nikola’s younger sister, Adela, said that she would be her surrogate.  Adela lived in the United States with her American husband, Graham, and their 3 children. Nikola and Jakub indicated that they would pay all the associated costs of the IVF process needed to impregnate Adela.

Unfortunately for the couples the surrogacy process proved  both difficult and costly. They made 5 different attempts in both the US and Australia over the course of 7 years, but without success.

The couples decided to make one final attempt but immediately before starting the process Adela discovered she was pregnant with Graham’s baby. While that couple was happy to be pregnant, they realised that due to severe financial constraints, they could not afford a fourth child. The two couples together decided that the perfect solution would be for Nikola and Jakub to adopt the baby.

When Adela was early in her third trimester she travelled to Australia from the US.  A few weeks later Adela gave birth to a baby girl, and both Nikola and Jakub were present to witness the birth of their daughter.  They (Nikola and Jakub) named the baby Joy, because of what she represented to the family.  A few weeks after the birth, Adela returned to the US.

Nikola and Jakub consulted with Sarah Beven Family Lawyers seeking to commence the adoption process. Joy, despite being born in Australia, was not considered an Australian citizen. Her birth parents, Adela and Graham, were named on the birth certificate however both were US citizens. If Adela and Graham had returned to the US with Joy, they could have applied for US citizenship by descent for Joy prior to her entry into the country. As they left her in the care of Nikola and Jakub, they did not do this and therefore Joy had no citizenship whatsoever. Joy had no legal status with Nikola and Jakub.

In a number of other circumstances Nikola and Jakub may well be considered the child’s ‘legal’ parents, as defined by the Family Law Act 1975, even though neither contributed their DNA or gave birth to the child.

The excitement of a new baby contributed to both couples not even considering getting legal advice prior to Joy’s birth. Nor did any of them do any significant research into the adoption process. They all proceeded with the assumption that given all parties consented, formal adoption would be a quick and straightforward process. Sadly that assumption was wrong.

We advised Nikola and Jakub of the two types of adoption for an existing and known child, one being adoption by application and the other being intra-family adoption.

Adoption by Application involves a lengthy process involving courses and interviews with the Department of Family and Community Services.  In cases where there is a known child the Department may exercise their right to assume parental responsibility of the child until they are satisfied and give consent for the child to be adopted.

The latter process seemed an obvious choice given Joy was their niece.  Intra-family adoptioncircumvents the need for the involvement of the Department.  Instead the adoptive parents make an application for adoption directly to the Supreme Court.  The difficulty however for Nikola and Jakub was the requirement that Joy needed to be in their care for a period of 2 years before they could adopt her.

Nikola and Jakub were despondent as the adoption process was not a viable option at that time. They needed to have some assurance that Joy would able to stay in their care and that they would be able to make parenting decisions on her behalf.

We suggested to Nikola and Jakub that they could make an application to the Family Court of Australia for sole parental responsibility and also to have the child live with them. Given this was all agreed, this application could ordinarily be by way of consent orders but because of the unusual nature of the arrangement the Registrar considering the consent orders was likely to refer the case to a Judge.

Nikola and Jakub considered it important to make this application because the Family law Act 1975provides that the parents of the child have parental responsibility, which means the parents are responsible for making all major decisions for the child including major medical, educational and religious decisions.  The effect of this was that Adela and Graham had the responsibility for all such decisions until a parental responsibility order was made in favour of Nikola and Jakub.

Although both couples were in agreement, we were unable to act for both couples in the application, as this would be a conflict of interest.

As expected the Registrar referred the case to a Judge, and did so on an urgent basis. On the first date in the court process the Judge made an Order for the parties to participate in a family report, which is where all relevant people meet with a professional known as a Family Consultant and that professional then prepares a social science based report for the Court.

The Family Report writer made a recommendation to Court that Joy should remain in the care of Nikola and Jakub and that they be granted parental responsibility. The Judge then, with the consent of both couples, made orders to this effect.

The entirety of this process took less than a year which was far more expedient than applying for adoption.

The Orders granted by the Court enabled Nikola and Jakub to make major decisions for Joy, and to do many things that natural or biological parents take for granted such as obtain health insurance and enrol at day care.  However, the Orders from the Family Court were a practical legal solution rather than satisfying the emotional requirement of having Joy formally known as Nikola and Jakub’s child.

If they had followed the altruistic surrogacy procedure, they may have been able to obtain a transfer of parentage order from the Supreme Court. That was not an option for them, but they have indicated they intend to apply for an Adoption Order after the two year period has lapsed. In the meantime they have the security for Joy that they so desperately needed.

Are you in a similar position to Nikola & Jakub?  Are you looking at Surrogacy and/or Adoption options?  Sarah Bevan Surrogacy Lawyers Sydney can help.

Call 1300 007 235 to speak to one of our Surrogacy Lawyers.

Alfonso Layson

For further information or assistance please contact Sarah Bevan Family Lawyers.

All names and identifying features have been changed for privacy reasons in our case studies. These case studies only have basic detail in them, and you should always bear in mind that every case is unique. These case studies are examples only, and cannot be applied to your circumstances without consideration of all relevant facts.