When a baby conceived via surrogacy is born, the surrogate and her partner (if she has one) are the legal parents. Parentage is transferred to the commissioning parent/s before the child is six months old.
At the time of writing, the only way that both men in a same-sex couple can be recognised as their child’s equal legal parents in Victoria is if the child is conceived and born through altruistic surrogacy here. This is done by transferring legal parentage from the surrogate (and her partner, if she has one) to the commissioning parent/s through a Supreme or County Court order.
When a baby is born in Victoria, the woman who gives birth (in this case, the surrogate) is deemed to be its legal mother, and is recorded as such on the birth certificate. Her partner, if she has one, is recorded as the father or parent. The commissioning parent/s must apply to the Supreme or County Court for a ‘substitute parentage order’, naming themselves as the child’s legal parent/s. They must live in Victoria when they make the application, and make it no less than 28 days after a child’s birth but before six months.
The Court will make the order once it is satisfied:
- that the order is in the child’s best interests
- that the surrogacy was commissioned through
- a fertility clinic and approved by the Patient Review Panel
- that the child is living with the commissioning parent/s when the application is made
- that the surrogate (and her partner if she has
one) received no material benefits from the
- that the surrogate and her partner freely
consent to the order.