For a domestic surrogacy arrangement, there will need to be an agreement entered into prior to conception. There is only one such agreement (often referred to as a contract), however other documents need to be prepared in order to effect a transfer of parentage.
Why do I need another lawyer to review the agreement?
An aim of all surrogacy legislation in Australia is to ensure that people entering into surrogacy arrangements are fully informed and have taken into consideration the legal and personal issues involved. While the surrogacy arrangement involves the surrogate and intended parent(s) working together for a very positive outcome, they have opposing legal interests involved. For that reason it is necessary that the surrogate receives legal advice separate from the intended parent(s). Lawyers cannot act in a ‘conflict of interest’ which is why there needs to be separate lawyers for the surrogate and intended parent(s). This also means the two lawyer cannot be from the same firm.
Are Surrogacy agreements classed as a Contract?
Surrogacy agreements are made under the relevant State (or Territory) legislation in Australia. They are often referred to in ordinary language as a contract, however they do not meet the legal requirements to be classed as a contract.
Is surrogacy legal in NSW?
The Surrogacy Act 2010 (NSW) provides a legal pathway for altruistic surrogacy. However, commercial surrogacy is illegal, and that applies for a NSW resident regardless of where in the world the surrogacy occurs.