Queensland Bills

[Index] [Search] [Download] [Related Items] [Help]


This is a Bill, not an Act. For current law, see the Acts databases.


SURROGACY BILL 2009

          Queensland



Surrogacy Bill 2009

 


 

 

Queensland Surrogacy Bill 2009 Contents Page Chapter 1 Preliminary Part 1 Introduction 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Part 2 Application, objects and guiding principles 4 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5 Main objects of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 6 Guiding principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Part 3 Key concepts 7 Meaning of surrogacy arrangement . . . . . . . . . . . . . . . . . . . . . . . 10 8 Meaning of birth mother, birth mother's spouse and birth parents 11 9 Meaning of intended parent and couple . . . . . . . . . . . . . . . . . . . . 11 10 Meaning of commercial surrogacy arrangement . . . . . . . . . . . . . 12 11 Meaning of birth mother's surrogacy costs. . . . . . . . . . . . . . . . . . 12 12 Meaning of parentage order and discharge order . . . . . . . . . . . . 14 13 Meaning of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 14 Meaning of medical or social need for a surrogacy arrangement and eligible woman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Chapter 2 Surrogacy arrangements 15 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 16 Rights of birth mother to manage pregnancy and birth . . . . . . . . 16 17 Presumptions under the Status of Children Act 1978 . . . . . . . . . 16 18 Registration of birth requirements . . . . . . . . . . . . . . . . . . . . . . . . 17 Chapter 3 Parentage orders Part 1 Introduction 19 Definitions for chapter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

 


 

Surrogacy Bill 2009 Contents Part 2 Making a parentage order 20 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 21 Application for a parentage order . . . . . . . . . . . . . . . . . . . . . . . . . 19 22 Making a parentage order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 23 Dispensing with a requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 24 Additional requirement if multiple births . . . . . . . . . . . . . . . . . . . . 22 25 Documents and information to be produced to court . . . . . . . . . . 22 26 Applicant's or joint applicants' affidavit . . . . . . . . . . . . . . . . . . . . . 24 27 Birth mother's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 28 Birth mother's spouse's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . 25 29 Other birth parent's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 30 Lawyer's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 31 Initial counsellor's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 32 Surrogacy guidance report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 33 Court may require attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 34 Form of parentage order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 35 Child's name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 36 Other orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 37 Other order if deceased intended parent . . . . . . . . . . . . . . . . . . . 30 38 Notice if child in need of protection . . . . . . . . . . . . . . . . . . . . . . . 30 Part 3 Effect of a parentage order 39 Effect on relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 40 Effect for property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 41 Public trustee to make inquiries if bequest to unlocatable child . . 32 42 Public trustee is trustee if bequest to unlocatable child . . . . . . . . 33 43 Public trustee's fees for involvement. . . . . . . . . . . . . . . . . . . . . . . 34 44 Transfer or distribution of property by trustee . . . . . . . . . . . . . . . . 34 Part 4 Discharge of a parentage order 45 Definitions for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 46 Application for a discharge order . . . . . . . . . . . . . . . . . . . . . . . . . 35 47 Making a discharge order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 48 Effect of discharge order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Part 5 Appeals 49 Appellants and appellable decisions . . . . . . . . . . . . . . . . . . . . . . 38 50 Appeal by rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Page 2

 


 

Surrogacy Bill 2009 Contents Part 6 Privacy 51 Hearing not to be in public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 52 Access to court records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 53 Publishing identifying material . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Chapter 4 Miscellaneous Part 1 Offences 54 Territorial application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 55 Advertisements and other published matters . . . . . . . . . . . . . . . . 42 56 Commercial surrogacy arrangements prohibited . . . . . . . . . . . . . 42 57 Giving or receiving consideration . . . . . . . . . . . . . . . . . . . . . . . . . 43 58 Providing technical, professional or medical services for a commercial surrogacy arrangement . . . . . . . . . . . . . . . . . . . . . . . 43 Part 2 Court matters 59 Court rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 60 Court fees and other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Chapter 5 Repeal and transitional provisions Part 1 Repeal 61 Repeal of Surrogate Parenthood Act 1988. . . . . . . . . . . . . . . . . . 45 Part 2 Transitional provisions for Surrogacy Act 2009 62 Definitions for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 63 Application for parentage order in relation to pre-commencement surrogacy arrangement . . . . . . . . . . . . . . . . 46 Chapter 6 Amendments Part 1 Amendment of this Act 64 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 65 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Part 2 Amendment of Adoption Act 2009 66 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 67 Amendment of s 76 (Eligibility for inclusion in register) . . . . . . . . 48 Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 68 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 69 Amendment of s 3 (Objects). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 70 Insertion of new s 10A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 10A Limitation on registration of parentage details . . . . . . 49 71 Amendment of s 13 (Application to change child's first name within a year of birth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Page 3

 


 

Surrogacy Bill 2009 Contents 72 Amendment of s 14 (Reregistering a birth or adoption) . . . . . . . . 50 73 Amendment of s 15 (Change of name by registration). . . . . . . . . 50 74 Amendment of s 17 (Application to register change of child's name) ......................................... 51 75 Amendment of s 19 (Registration of change of name) . . . . . . . . . 51 76 Amendment of s 20 (Notation of change of name other than by registration) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 77 Amendment of s 41 (Registering events other than adoptions in register) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 78 Insertion of new ss 41D and 41E . . . . . . . . . . . . . . . . . . . . . . . . . 52 41D Registering change of parentage under parentage order ................................. 52 41E Reregistering birth if discharge order . . . . . . . . . . . . . 53 79 Amendment of s 44 (Obtaining information from the registrar) . . 54 80 Insertion of new s 44A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 44A Addendum to birth certificate . . . . . . . . . . . . . . . . . . . 56 81 Insertion of new pt 9, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 63 Application to alter or add parentage details as result of amendments to the Status of Children Act 1978 . . 57 64 Amendment of regulation by Surrogacy Act 2009 does not affect powers of Governor in Council. . . . . . 59 82 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 59 Part 4 Amendment of Births, Deaths and Marriages Registration Regulation 2003 83 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 84 Amendment of s 13 (Information and documents for registering events in register--Act, s 41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 85 Amendment of s 15 (Information that may be obtained from register--Act, s 44). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 86 Amendment of s 16 (Information for commemorative birth certificate) 61 87 Amendment of sch 1 (Application information). . . . . . . . . . . . . . . 61 88 Amendment of sch 2 (Information for certificates) . . . . . . . . . . . . 62 Part 5 Amendment of the Criminal Code 89 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 90 Amendment of s 222 (Incest) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 91 Amendment of s 363 (Child-stealing) . . . . . . . . . . . . . . . . . . . . . . 63 Part 6 Amendment of Domicile Act 1981 92 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 93 Amendment of s 8 (Domicile of certain children) . . . . . . . . . . . . . 64 Page 4

 


 

Surrogacy Bill 2009 Contents Part 7 Amendment of Evidence Act 1977 94 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 95 Amendment of s 21AC (Definitions for div 4A) . . . . . . . . . . . . . . . 66 Part 8 Amendment of Guardianship and Administration Act 2000 96 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 97 Amendment of sch 2 (Types of matters). . . . . . . . . . . . . . . . . . . . 67 Part 9 Amendment of Powers of Attorney Act 1998 98 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 99 Amendment of sch 2 (Types of matters). . . . . . . . . . . . . . . . . . . . 67 Part 10 Amendment of Status of Children Act 1978 100 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 101 Amendment of s 4 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 68 102 Amendment of s 8 (Recognition of paternity) . . . . . . . . . . . . . . . . 68 103 Amendment of s 9 (Filing of certain instruments with registrar-general) 68 104 Amendment of s 10 (Declaration of paternity) . . . . . . . . . . . . . . . 69 105 Amendment of s 18 (Implantation procedure--Presumption as to status where donor semen used) . . . . . . . . . . . . . . . . . . . . . . . 69 106 Amendment of s 19 (Implantation procedure--Presumption as to status where donor ovum used) . . . . . . . . . . . . . . . . . . . . . . . . 70 107 Insertion of new pt 3, div 2, sdiv 2A . . . . . . . . . . . . . . . . . . . . . . . 70 Subdivision 2A Fertilisation procedures--women with female de facto partner's consent 19A Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 19B Application of sdiv 2A . . . . . . . . . . . . . . . . . . . . . . . . . 71 19C Artificial insemination--Presumption as to status . . . 71 19D Implantation procedure--Presumption as to status where donor semen used. . . . . . . . . . . . . . . . . . . . . . 71 19E Implantation procedure--Presumption as to status where donor ovum used . . . . . . . . . . . . . . . . . . . . . . . 72 19F Irrebuttable presumptions. . . . . . . . . . . . . . . . . . . . . . 73 19G Presumption without consent . . . . . . . . . . . . . . . . . . . 73 108 Replacement of s 20 (Application of sdiv 3) . . . . . . . . . . . . . . . . . 73 20 Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 73 109 Amendment of s 22 (Implantation procedure--Presumption as to status where donor semen used) . . . . . . . . . . . . . . . . . . . . . . . 74 110 Amendment of s 23 (Implantation procedure--Presumption as to status where donor ovum used) . . . . . . . . . . . . . . . . . . . . . . . . 74 Page 5

 


 

Surrogacy Bill 2009 Contents 111 Insertion of new pt 5, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 36 Parentage presumption of children conceived by particular fertilisation procedures occurring before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 37 Parentage presumption of children conceived by particular fertilisation procedures occurring before commencement for women with female de facto partner ............................... 75 Chapter 7 Amendments of Acts 112 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Schedule 1 Minor amendments of Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Births, Deaths and Marriages Registration Act 2003 . . . . . . . . . . 77 Criminal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Guardianship and Administration Act 2000 . . . . . . . . . . . . . . . . . 79 Status of Children Act 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Schedule 2 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Page 6

 


 

2009 A Bill for An Act about surrogacy arrangements, to provide for the court-sanctioned transfer of parentage of children born as a result of particular surrogacy arrangements, to prohibit commercial surrogacy arrangements, to make particular related amendments of the Adoption Act 2009, the Births, Deaths and Marriages Registration Act 2003 and the regulation under that Act, the Criminal Code, the Domicile Act 1981, the Evidence Act 1977, the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998, to amend the Status of Children Act 1978 for particular purposes and to make minor and consequential amendments of Acts as stated in schedule 1

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 1 Introduction [s 1] The Parliament of Queensland enacts-- 1 Chapter 1 Preliminary 2 Part 1 Introduction 3 1 Short title 4 This Act may be cited as the Surrogacy Act 2009. 5 2 Commencement 6 This Act commences on a day to be fixed by proclamation. 7 3 Dictionary 8 The dictionary in schedule 2 defines particular words used in 9 this Act. 10 Part 2 Application, objects and 11 guiding principles 12 4 Act binds all persons 13 (1) This Act binds all persons including the State and, as far as 14 the legislative power of the Parliament permits, the 15 Commonwealth and all the other States. 16 (2) Subsection (1) does not make the State, the Commonwealth or 17 another State liable for an offence. 18 Page 8

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 2 Application, objects and guiding principles [s 5] 5 Main objects of Act 1 The main objects of this Act are-- 2 (a) to regulate particular matters in relation to surrogacy 3 arrangements, including by prohibiting commercial 4 surrogacy arrangements and providing, in particular 5 circumstances, for the court-sanctioned transfer of 6 parentage of a child born as a result of a surrogacy 7 arrangement; and 8 (b) in the context of a surrogacy arrangement that may 9 result in the court-sanctioned transfer of parentage of a 10 child born as a result-- 11 (i) to establish procedures to ensure parties to the 12 arrangement understand its nature and 13 implications; and 14 (ii) to safeguard the child's wellbeing and best 15 interests. 16 6 Guiding principles 17 (1) This Act is to be administered according to the principle that 18 the wellbeing and best interests of a child born as a result of a 19 surrogacy arrangement, both through childhood and for the 20 rest of his or her life, are paramount. 21 (2) Subject to subsection (1), this Act is to be administered 22 according to the following principles-- 23 (a) a child born as a result of a surrogacy arrangement 24 should be cared for in a way that-- 25 (i) ensures a safe, stable and nurturing family and 26 home life; and 27 (ii) promotes openness and honesty about the child's 28 birth parentage; and 29 (iii) promotes the development of the child's emotional, 30 mental, physical and social wellbeing; 31 Page 9

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 3 Key concepts [s 7] (b) the same status, protection and support should be 1 available to a child born as a result of a surrogacy 2 arrangement regardless of-- 3 (i) how the child was conceived under the 4 arrangement; or 5 (ii) whether there is a genetic relationship between the 6 child and any of the parties to the arrangement; or 7 (iii) the relationship status of the persons who become 8 the child's parents as a result of a transfer of 9 parentage; 10 (c) the long-term health and wellbeing of parties to a 11 surrogacy arrangement and their families should be 12 promoted; 13 (d) the autonomy of consenting adults in their private lives 14 should be respected. 15 Part 3 Key concepts 16 7 Meaning of surrogacy arrangement 17 (1) A surrogacy arrangement means an arrangement, agreement 18 or understanding between a woman and another person or 19 persons under which-- 20 (a) the woman agrees to become, or try to become, pregnant 21 with the intention that-- 22 (i) a child born as a result of the pregnancy is to be 23 treated as the child, not of the woman, but of the 24 other person or persons; and 25 (ii) the woman will relinquish to the other person or 26 persons custody and guardianship of a child born 27 as a result of the pregnancy; and 28 Page 10

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 3 Key concepts [s 8] (b) the other person or persons agree to become 1 permanently responsible for the custody and 2 guardianship of a child born as a result of the pregnancy. 3 Note-- 4 Section 7(1) sets out only the minimum requirements for a surrogacy 5 arrangement. There are many additional requirements which must be 6 satisfied to obtain a parentage order under chapter 3. For example, 7 independent legal advice must be obtained before entering into a 8 surrogacy arrangement if transfer of parentage of the child born as a 9 result of the arrangement is desired--see section 22(2)(e)(i). 10 (2) There may be other parties to a surrogacy arrangement, for 11 example, the woman's spouse. 12 Notes-- 13 1 The woman's spouse (if any) must be a party to the arrangement if 14 transfer of parentage of the child born as a result of the arrangement 15 is desired--see section 22(2)(e)(v). 16 2 Spouse is defined in the Acts Interpretation Act 1954, section 36 to 17 include a de facto partner. 18 (3) Also, there may be other matters dealt with in a surrogacy 19 arrangement. 20 8 Meaning of birth mother, birth mother's spouse and birth 21 parents 22 (1) The birth mother is the woman who agrees to the matters 23 mentioned in section 7(1)(a) under a surrogacy arrangement. 24 (2) The birth mother's spouse means the birth mother's spouse at 25 the time when the birth mother entered into the surrogacy 26 arrangement. 27 (3) A birth parent, of a child, means a person (other than an 28 intended parent) who is recognised at law as being a parent of 29 the child at the time when the child is born. 30 9 Meaning of intended parent and couple 31 (1) An intended parent is a person who agrees to the matter 32 Page 11

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 3 Key concepts [s 10] mentioned in section 7(1)(b) under a surrogacy arrangement. 1 Note-- 2 Parentage of a child born as a result of a surrogacy arrangement may 3 only be transferred to 1 intended parent who is single or 2 intended 4 parents who are a couple--see section 22(2)(c). 5 (2) A couple is a person and the person's spouse. 6 10 Meaning of commercial surrogacy arrangement 7 A surrogacy arrangement is a commercial surrogacy 8 arrangement if a person receives a payment, reward or other 9 material benefit or advantage (other than the reimbursement 10 of the birth mother's surrogacy costs) for the person or 11 another person-- 12 (a) agreeing to enter into or entering into the surrogacy 13 arrangement; or 14 (b) permanently relinquishing to 1 or more intended parents 15 the custody and guardianship of a child born as a result 16 of the surrogacy arrangement; or 17 (c) consenting to the making of a parentage order for a child 18 born as a result of the surrogacy arrangement. 19 11 Meaning of birth mother's surrogacy costs 20 (1) A birth mother's surrogacy costs are the birth mother's 21 reasonable costs associated with any of the following 22 matters-- 23 (a) becoming or trying to become pregnant; 24 (b) a pregnancy or a birth; 25 (c) the birth mother and the birth mother's spouse (if any) 26 being a party to a surrogacy arrangement or proceedings 27 in relation to a parentage order. 28 (2) Without limiting subsection (1), the following amounts are a 29 birth mother's surrogacy costs-- 30 Page 12

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 3 Key concepts [s 11] (a) a reasonable medical cost for the birth mother 1 associated with any of the matters mentioned in 2 subsection (1); 3 Example of a reasonable medical cost for paragraph (a)-- 4 a cost incurred before conception if the birth mother consults a 5 medical practitioner to find out if she is capable of carrying a 6 pregnancy before undergoing a fertilisation procedure 7 (b) a reasonable cost, including a reasonable medical cost, 8 for a child born as a result of the surrogacy arrangement; 9 (c) a premium payable for health, disability or life 10 insurance that would not have been obtained by the birth 11 mother if the surrogacy arrangement had not been 12 entered into; 13 (d) a reasonable cost of counselling associated with any of 14 the matters mentioned in subsection (1), including-- 15 (i) the cost of counselling obtained by the birth 16 mother or the birth mother's spouse (if any) before 17 or after entering into the surrogacy arrangement; or 18 (ii) the cost relating to the preparation of a surrogacy 19 guidance report under section 32; 20 (e) a reasonable legal cost for the birth mother and the birth 21 mother's spouse (if any) relating to the surrogacy 22 arrangement and the transfer of parentage; 23 (f) the value of the birth mother's actual lost earnings 24 because of leave taken-- 25 (i) for a period of not more than 2 months during 26 which a birth happened or was expected to happen; 27 or 28 (ii) for any other period during the pregnancy when the 29 birth mother was unable to work on medical 30 grounds; 31 (g) another reasonable cost associated with the surrogacy 32 arrangement or the making of the order transferring 33 parentage. 34 Page 13

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 3 Key concepts [s 12] Examples of other reasonable costs for paragraph (g)-- 1 travel and accommodation costs for a birth mother who lives 2 interstate and travels to Queensland to undertake a fertility 3 treatment, to consult with an obstetrician or to give birth 4 travel and accommodation costs associated with a birth 5 mother's attendance at a court hearing about an application 6 for a parentage order if the birth mother does not live near 7 the court 8 (3) In this section-- 9 legal cost includes fees for obtaining legal advice and legal 10 representation, court fees, and registry fees associated with 11 registration of a birth and transfer of parentage. 12 medical cost means a medical cost to the extent that it is not 13 recoverable under Medicare or any health insurance or other 14 scheme. 15 12 Meaning of parentage order and discharge order 16 (1) A parentage order is an order made by the court under 17 chapter 3 for the transfer of the parentage of a child born as a 18 result of a surrogacy arrangement. 19 (2) A discharge order is an order made by the court under chapter 20 3 discharging a parentage order. 21 13 Meaning of court 22 The court is the Childrens Court constituted by a Childrens 23 Court judge. 24 14 Meaning of medical or social need for a surrogacy 25 arrangement and eligible woman 26 (1) For an application for a parentage order-- 27 (a) if there is 1 intended parent under the surrogacy 28 arrangement--there is a medical or social need for the 29 Page 14

 


 

Surrogacy Bill 2009 Chapter 1 Preliminary Part 3 Key concepts [s 14] surrogacy arrangement if the intended parent is a man or 1 an eligible woman; or 2 (b) if there are 2 intended parents under the surrogacy 3 arrangement--there is a medical or social need for the 4 surrogacy arrangement if the intended parents are-- 5 (i) a man and an eligible woman; or 6 (ii) 2 men; or 7 (iii) 2 eligible women. 8 (2) An eligible woman is a woman who-- 9 (a) is unable to conceive; or 10 (b) if able to conceive-- 11 (i) is likely to be unable, on medical grounds, either to 12 carry a pregnancy or to give birth; or 13 (ii) either-- 14 (A) is unlikely to survive a pregnancy or birth; or 15 (B) is likely to have her health significantly 16 affected by a pregnancy or birth; or 17 (iii) is likely to conceive-- 18 (A) a child affected by a genetic condition or 19 disorder, the cause of which is attributable to 20 the woman; or 21 (B) a child who is unlikely to survive a 22 pregnancy or birth; or 23 (C) a child whose health is likely to be 24 significantly affected by a pregnancy or 25 birth. 26 Page 15

 


 

Surrogacy Bill 2009 Chapter 2 Surrogacy arrangements Part 3 Key concepts [s 15] Chapter 2 Surrogacy arrangements 1 15 Enforcement 2 (1) A surrogacy arrangement is not enforceable. 3 (2) However, an obligation under a surrogacy arrangement to pay 4 or reimburse the birth mother's surrogacy costs is enforceable 5 unless-- 6 (a) a child is born as a result of the surrogacy arrangement; 7 and 8 (b) the birth mother-- 9 (i) does not relinquish the custody and guardianship 10 of the child to an intended parent; or 11 (ii) on an application (if any) for a parentage order in 12 relation to the child, does not consent to the 13 making of the order. 14 16 Rights of birth mother to manage pregnancy and birth 15 (1) This section applies to a surrogacy arrangement despite 16 anything that the parties to the arrangement may have agreed, 17 whether or not in writing. 18 (2) A birth mother has the same rights to manage her pregnancy 19 and birth as any other pregnant woman. 20 17 Presumptions under the Status of Children Act 1978 21 To remove any doubt, it is declared that, unless and until a 22 parentage order is made under chapter 3 transferring the 23 parentage of a child born as a result of a surrogacy 24 arrangement, the parentage presumptions under the Status of 25 Children Act 1978 apply to the child. 26 Page 16

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 3 Key concepts [s 18] 18 Registration of birth requirements 1 To remove any doubt, it is declared that the requirement under 2 the Births, Deaths and Marriages Registration Act 2003 to 3 register the birth of a child applies to the birth parents of a 4 child born as a result of a surrogacy arrangement. 5 Chapter 3 Parentage orders 6 Part 1 Introduction 7 19 Definitions for chapter 8 In this chapter-- 9 appropriately qualified means-- 10 (a) for a counsellor swearing an affidavit verifying a report 11 prepared by the counsellor, a person who-- 12 (i) is one of the following-- 13 (A) a member of the Australian and New 14 Zealand Infertility Counsellors Association; 15 (B) a psychiatrist who is a member of the Royal 16 Australian and New Zealand College of 17 Psychiatrists; 18 (C) a psychologist who is a member of the 19 Australian Psychological Society; 20 (D) a social worker who is a member of the 21 Australian Association of Social Workers; 22 and 23 (ii) has the experience, skills or knowledge appropriate 24 to prepare the report; or 25 Page 17

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 20] (b) for a medical practitioner swearing an affidavit 1 mentioned in section 25(1)(j), a medical practitioner 2 who has the qualifications, experience, skills or 3 knowledge appropriate to prepare the report. 4 child, other than in part 4, means a child born as a result of a 5 surrogacy arrangement. 6 consent means consent freely and voluntarily given by a 7 person with capacity, within the meaning of the Guardianship 8 and Administration Act 2000, to give the consent. 9 independent, for a counsellor in relation to an application for 10 a parentage order in relation to a child, means the 11 counsellor-- 12 (a) did not give counselling about the surrogacy 13 arrangement to the birth mother, the birth mother's 14 spouse (if any) or an intended parent; and 15 (b) is not, and has not been, directly connected with a 16 medical practitioner who carried out a procedure that 17 resulted in the birth of the child. 18 Example of direct connection-- 19 A counsellor is directly connected with a medical practitioner if 20 the counsellor is engaged to give fertility counselling at the 21 fertility clinic where the medical practitioner carried out a 22 procedure that resulted in the birth of the child. 23 Part 2 Making a parentage order 24 20 Purpose 25 This part facilitates the transfer, in particular circumstances, 26 of the parentage of a child born as a result of a surrogacy 27 arrangement that satisfies particular requirements. 28 Page 18

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 21] 21 Application for a parentage order 1 (1) An application for a parentage order in relation to a child may 2 be made-- 3 (a) not less than 28 days and not more than 6 months after 4 the child's birth; or 5 (b) at a later time with the court's leave. 6 (2) The court may grant leave under subsection (1)(b) only if it 7 considers the making of the late application is justified 8 because of exceptional circumstances and that it is for the 9 wellbeing, and in the best interests, of the child to grant the 10 leave. 11 (3) Subsections (4) and (5) apply if there are 2 intended parents 12 under the surrogacy arrangement and the 2 intended parents 13 were a couple when the surrogacy arrangement was made. 14 (4) The application for the parentage order may be made only by 15 the 2 intended parents jointly. 16 (5) However, if the 2 intended parents are no longer a couple or 1 17 of them has died, 1 of the intended parents may apply for a 18 parentage order. 19 (6) If there is 1 intended parent under the surrogacy arrangement 20 and the intended parent did not have a spouse when the 21 surrogacy arrangement was made, the intended parent may 22 apply for a parentage order. 23 (7) To the extent practicable, the documents mentioned in section 24 25 must be filed with the application. 25 22 Making a parentage order 26 (1) On an application under this part, the court may make a 27 parentage order for the transfer of parentage of a child to the 28 applicant, or joint applicants. 29 (2) The court may make the parentage order only if it is satisfied 30 of all of the following matters-- 31 Page 19

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 22] (a) the proposed order will be for the wellbeing, and in the 1 best interests, of the child; 2 (b) the child-- 3 (i) has resided with the applicant, or joint applicants, 4 for at least 28 consecutive days before the day the 5 application was made; and 6 (ii) was residing with the applicant, or joint applicants, 7 when the application was made; and 8 (iii) is residing with the applicant, or joint applicants, at 9 the time of the hearing; 10 (c) the applicant, or joint applicants, were entitled to apply 11 under section 21; 12 (d) there is evidence of a medical or social need for the 13 surrogacy arrangement; 14 (e) the surrogacy arrangement-- 15 (i) was made after-- 16 (A) the birth mother and the birth mother's 17 spouse (if any), jointly or separately; and 18 (B) the applicant, or joint applicants (jointly or 19 separately); 20 obtained independent legal advice about the 21 surrogacy arrangement and its implications; and 22 (ii) was made after each of the birth mother, the birth 23 mother's spouse (if any) and the applicant, or joint 24 applicants, obtained counselling from an 25 appropriately qualified counsellor about the 26 surrogacy arrangement and its social and 27 psychological implications; and 28 (iii) was made with the consent of the birth mother, the 29 birth mother's spouse (if any) and the applicant, or 30 joint applicants; and 31 (iv) was made before the child was conceived; and 32 Page 20

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 23] (v) is in writing and signed by the birth mother, the 1 birth mother's spouse (if any) and the applicant, or 2 joint applicants; and 3 (vi) is not a commercial surrogacy arrangement; 4 (f) the birth mother and the birth mother's spouse (if any) 5 were at least 25 years when the surrogacy arrangement 6 was made; 7 (g) the applicant, or each of the joint applicants-- 8 (i) was at least 25 years when the surrogacy 9 arrangement was made; and 10 (ii) is resident in Queensland; 11 (h) the birth mother, the birth mother's spouse (if any), 12 another birth parent (if any) and the applicant, or joint 13 applicants, consent to the making of the parentage order 14 at the time of the hearing; 15 (i) a surrogacy guidance report under section 32 supports 16 the making of the proposed order. 17 23 Dispensing with a requirement 18 (1) The court may not dispense with a requirement mentioned in 19 section 22(2)(a) or (e)(iii), (iv) or (vi). 20 (2) The court may dispense with a requirement mentioned in 21 section 22(2)(b) to (d), (e)(i), (ii) or (v), or (f) to (i) only if the 22 court is satisfied-- 23 (a) there are exceptional circumstances for giving the 24 dispensation; and 25 Example of exceptional circumstances for dispensing with the 26 requirement under section 22(2)(g)(ii) -- 27 One of the joint applicants is temporarily residing outside 28 Queensland because of work commitments but is still in a 29 spousal relationship with the other joint applicant who is 30 resident in Queensland. 31 Page 21

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 24] (b) the dispensation will be for the wellbeing, and in the 1 best interests, of the child. 2 (3) However, to dispense with the requirement under section 3 22(2)(h) for a person to consent to the making of the 4 parentage order, the exceptional circumstances for giving the 5 dispensation must be either that-- 6 (a) the person has died or is not a person with capacity to 7 give the consent; or 8 (b) an applicant can not locate the person after making all 9 reasonable enquiries. 10 24 Additional requirement if multiple births 11 (1) This section applies if a child has a living birth sibling. 12 (2) Despite any other provision of this Act, the court may make a 13 parentage order about the child in favour of an applicant, or 14 joint applicants, only if it also makes a parentage order about 15 each living birth sibling of the child in favour of the applicant, 16 or joint applicants. 17 (3) In this section-- 18 birth sibling, of a child, means a brother or sister of the child 19 who is born as a result of the same pregnancy as the child. 20 25 Documents and information to be produced to court 21 (1) For an application for a parentage order, the following 22 documents must be produced to the court-- 23 (a) a copy of the child's birth certificate; 24 (b) a copy of the surrogacy arrangement; 25 (c) an affidavit under section 26 sworn by the applicant, or 26 joint applicants; 27 (d) an affidavit under section 27 sworn by the birth mother; 28 Page 22

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 25] (e) an affidavit under section 28 sworn by the birth mother's 1 spouse (if any); 2 (f) an affidavit under section 29 sworn by another birth 3 parent (if any); 4 (g) for the applicant, or each joint applicant, the birth 5 mother and the birth mother's spouse (if any)--an 6 affidavit under section 30 sworn by the lawyer who gave 7 legal advice to the person before the surrogacy 8 arrangement was made; 9 (h) an affidavit under section 31 sworn by the appropriately 10 qualified counsellor who gave counselling to the birth 11 mother, the birth mother's spouse (if any) and the 12 applicant, or each joint applicant, before the surrogacy 13 arrangement was made; 14 (i) an affidavit-- 15 (i) sworn by the independent and appropriately 16 qualified counsellor who, for the purpose of the 17 application, interviewed the birth mother, the birth 18 mother's spouse (if any), another birth parent (if 19 any) and the applicant, or joint applicants; and 20 (ii) verifying a surrogacy guidance report under 21 section 32 prepared by the counsellor; 22 (j) for each applicant who is a woman, an affidavit from an 23 appropriately qualified medical practitioner verifying a 24 report prepared by the medical practitioner as to why the 25 applicant is an eligible woman. 26 (2) Despite subsection (1)(d), (e) and (f), a single affidavit 27 satisfying the requirements mentioned in sections 27 to 29 28 may be sworn by the birth mother, the birth mother's spouse 29 (if any) and another birth parent (if any). 30 (3) Despite subsection (1)(g), a single affidavit satisfying the 31 requirements mentioned in section 30 may be sworn by the 32 following-- 33 Page 23

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 26] (a) a lawyer who gave legal advice to the birth mother and 1 the birth mother's spouse jointly; 2 (b) a lawyer who gave legal advice to joint applicants 3 jointly. 4 (4) Despite subsection (1)(h), if the same counsellor did not give 5 counselling to the birth mother, the birth mother's spouse (if 6 any) and the applicant, or joint applicants, affidavits under 7 section 31 may be sworn by more than 1 counsellor. 8 26 Applicant's or joint applicants' affidavit 9 The affidavit sworn by the applicant, or joint applicants, must 10 address the matters mentioned in section 22(2) (to the extent 11 they are not matters regarding the birth mother, the birth 12 mother's spouse (if any) or another birth parent (if any)), 13 including by stating-- 14 (a) the current and proposed care arrangements for the 15 child; and 16 (b) the understanding of the applicant, or joint applicants, of 17 the social, psychological and legal implications of the 18 surrogacy arrangement and the making of a parentage 19 order; and 20 (c) the understanding of the applicant, or joint applicants, in 21 relation to openness and honesty about the child's birth 22 parentage being for the wellbeing, and in the best 23 interests, of the child; and 24 (d) the proposed name for the child; and 25 (e) for each applicant--the applicant's date of birth and 26 occupation (as at the date of the child's birth). 27 27 Birth mother's affidavit 28 The affidavit sworn by the birth mother must address the 29 matters mentioned in section 22(2)(a), (e), (f) and (h) (to the 30 Page 24

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 28] extent they are matters regarding the birth mother), and 1 (2)(e)(iv) and (vi), including by stating-- 2 (a) the understanding of the birth mother of the social, 3 psychological and legal implications of the surrogacy 4 arrangement and the making of a parentage order; and 5 (b) the understanding of the birth mother in relation to 6 openness and honesty about the child's birth parentage 7 being for the wellbeing, and in the best interests, of the 8 child; and 9 (c) that the birth mother did not receive any payment, 10 reward or other material benefit or advantage, other than 11 the birth mother's surrogacy costs, for a matter 12 mentioned in section 10(a), (b), or (c); and 13 (d) the birth mother's date of birth. 14 28 Birth mother's spouse's affidavit 15 The affidavit sworn by the birth mother's spouse must address 16 the matters mentioned in section 22(2)(a), (e), (f) and (h) (to 17 the extent they are matters regarding the birth mother's 18 spouse) and (2)(e)(iv) and (vi), including by stating-- 19 (a) the understanding of the birth mother's spouse of the 20 social, psychological and legal implications of the 21 surrogacy arrangement and the making of a parentage 22 order; and 23 (b) the understanding of the birth mother's spouse in 24 relation to openness and honesty about the child's birth 25 parentage being for the wellbeing, and in the best 26 interests, of the child; and 27 (c) that the birth mother's spouse did not receive any 28 payment, reward or other material benefit or advantage 29 for a matter mentioned in section 10(a), (b), or (c); and 30 (d) the birth mother's spouse's date of birth. 31 Page 25

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 29] 29 Other birth parent's affidavit 1 The affidavit sworn by the other birth parent must address the 2 matters mentioned in section 22(2)(a) and (h) (to the extent it 3 is a matter regarding the other birth parent) and (2)(e)(vi), 4 including by stating-- 5 (a) the understanding of the other birth parent of the social, 6 psychological and legal implications of the surrogacy 7 arrangement and the making of a parentage order; and 8 (b) the understanding of the other birth parent in relation to 9 openness and honesty about the child's birth parentage 10 being for the wellbeing, and in the best interests, of the 11 child; and 12 (c) that the other birth parent did not receive any payment, 13 reward or other material benefit or advantage for a 14 matter mentioned in section 10(a), (b), or (c). 15 30 Lawyer's affidavit 16 (1) The affidavit sworn by the lawyer who gave legal advice to a 17 person must address the matter mentioned in section 18 22(2)(e)(i), including by stating-- 19 (a) separate and independent legal advice was given to the 20 person before the surrogacy arrangement was made; and 21 (b) the legal advice included advice about the following 22 matters-- 23 (i) the unenforceable nature of the arrangement, other 24 than as provided under section 15; 25 (ii) the person's legal obligations under the 26 arrangement and this Act; 27 (iii) the legal implications if the birth mother does not 28 relinquish the child, including whether child 29 support would be payable by the child's biological 30 father under the Child Support (Assessment) Act 31 1989 (Cwlth); 32 Page 26

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 31] (iv) the legal implications if, after the birth of the child, 1 the intended parents do not want to be permanently 2 responsible for the child's custody and 3 guardianship; 4 (v) the legal implications if, after the birth of the child, 5 the birth mother, the birth mother's spouse (if any), 6 another birth parent (if any) and the intended 7 parents do not want to be permanently responsible 8 for the child's custody and guardianship; 9 (vi) the legal implications of the making of a parentage 10 order; 11 (vii) that this Act promotes openness and honesty about 12 the child's birth parentage; and 13 (c) the lawyer's belief that the person appeared to 14 understand the legal advice given. 15 (2) To remove any doubt, it is declared that this Act does not 16 affect the law relating to legal professional privilege. 17 Example-- 18 The lawyer is not obliged under this Act to disclose information or a 19 document if the information or document is protected by legal 20 professional privilege. 21 31 Initial counsellor's affidavit 22 The affidavit sworn by the appropriately qualified counsellor 23 who gave counselling to the birth mother, the birth mother's 24 spouse (if any) and the intended parents (the relevant 25 persons) must verify a report prepared by the counsellor 26 addressing the matter mentioned in section 22(2)(e)(ii), 27 including by stating-- 28 (a) the reasons the counsellor is an appropriately qualified 29 counsellor; and 30 (b) that counselling about the surrogacy arrangement and its 31 social and psychological implications was given to the 32 Page 27

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 32] relevant persons before the surrogacy arrangement was 1 made. 2 32 Surrogacy guidance report 3 (1) A surrogacy guidance report must be prepared by an 4 independent and appropriately qualified counsellor and state 5 the following matters-- 6 (a) the reasons the counsellor is an independent and 7 appropriately qualified counsellor; 8 (b) that, for the application, the counsellor interviewed the 9 birth mother, the birth mother's spouse (if any), another 10 birth parent (if any) and the applicant, or joint 11 applicants, (the relevant persons); 12 (c) the date or dates of the interviews; 13 (d) the counsellor's opinion formed as a result of the 14 interviews relevant to the application for a parentage 15 order including, for example, about the following 16 matters-- 17 (i) each relevant person's understanding of-- 18 (A) the social and psychological implications of 19 the making of a parentage order on the child 20 and relevant persons; 21 (B) openness and honesty about the child's birth 22 parentage being for the wellbeing, and in the 23 best interests, of the child; 24 (ii) the care arrangements that the applicant, or joint 25 applicants, have proposed for the child; 26 (iii) whether the making of a parentage order would be 27 for the wellbeing, and in the best interests, of the 28 child. 29 Page 28

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 33] 33 Court may require attendance 1 On an application for a parentage order, the court may, for the 2 purpose of deciding whether the proposed order will promote 3 the child's wellbeing and best interests, require the attendance 4 before it of the birth mother, the birth mother's spouse (if 5 any), the other birth parent (if any), the applicant, or joint 6 applicants, or another person who has sworn an affidavit for 7 the application to-- 8 (a) give evidence in relation to the application; or 9 (b) produce stated documents or things. 10 34 Form of parentage order 11 A parentage order must state the following details-- 12 (a) the date of the order; 13 (b) the first name and surname of the child-- 14 (i) before the order was made; and 15 (ii) on the making of the order; 16 (c) the date of birth of the child; 17 (d) the place of birth of the child; 18 (e) for each applicant, the applicant's first name and 19 surname, address and occupation; 20 (f) the first name and surname and address of each of the 21 the child's birth parents; 22 (g) the terms of any ancillary orders. 23 35 Child's name 24 (1) On the making of a parentage order, the child's names are the 25 names the court approves for the child in the parentage order. 26 (2) In approving a name under this section, the court must have 27 regard to the child's wellbeing and best interests and must not 28 Page 29

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 2 Making a parentage order [s 36] approve a name that is a prohibited name under the Births, 1 Deaths and Marriages Registration Act 2003. 2 (3) This section does not prevent a name of the child being 3 changed later under a law of the State or the Commonwealth. 4 36 Other orders 5 If the court makes a parentage order, it may also make any 6 other order it considers appropriate in the interests of justice 7 or to ensure the child's wellbeing and best interests. 8 37 Other order if deceased intended parent 9 (1) This section applies if-- 10 (a) there were 2 intended parents under a surrogacy 11 arrangement and the 2 intended parents were a couple 12 when the surrogacy arrangement was made; and 13 (b) one of the intended parents dies before a parentage order 14 is made. 15 (2) Without limiting section 36, if the court makes a parentage 16 order transferring parentage of the child to the surviving 17 intended parent, the court may also make an order declaring 18 that the deceased intended parent is taken to have been a 19 parent of the child. 20 38 Notice if child in need of protection 21 If, on an application under this chapter in relation to a child, 22 the court considers the child is a child in need of protection 23 within the meaning of the Child Protection Act 1999, the court 24 may under that Act notify the chief executive within the 25 meaning of that Act. 26 Page 30

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 3 Effect of a parentage order [s 39] Part 3 Effect of a parentage order 1 39 Effect on relationships 2 (1) This section applies if the court makes a parentage order in 3 relation to a child in favour of an intended parent, or intended 4 parents. 5 (2) On the making of the parentage order-- 6 (a) the child becomes a child of the intended parent, or 7 intended parents, and the intended parent, or intended 8 parents, become the parent, or parents, of the child; and 9 (b) the child stops being a child of a birth parent and a birth 10 parent stops being a parent of the child. 11 (3) Other relationships are determined in accordance with 12 subsection (2). 13 (4) However, for the purpose of applying a law relating to a 14 sexual offence where a familial relationship is relevant, the 15 child is taken to have both the familial relationships that 16 existed before the making of the parentage order as well as the 17 familial relationships that result from the making of the 18 parentage order. 19 40 Effect for property 20 (1) Section 39(2) and (3) has effect in relation to-- 21 (a) dispositions of property whether by will or otherwise; 22 and 23 (b) devolutions of property in relation to which a person 24 dies intestate. 25 (2) However, section 39 does not affect the operation of a will or 26 other instrument that distinguishes between children who 27 were born as a result of a surrogacy arrangement (surrogacy 28 arrangement children) and children other than surrogacy 29 arrangement children. 30 Page 31

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 3 Effect of a parentage order [s 41] 41 Public trustee to make inquiries if bequest to unlocatable 1 child 2 (1) This section applies if-- 3 (a) under a will made after the commencement of this 4 section, the testator makes a disposition of property to a 5 person who is described-- 6 (i) as being a child of the testator or of another person; 7 and 8 (ii) as having had his or her parentage transferred to 9 another person or persons as a result of a parentage 10 order; and 11 (b) the personal representative of the testator is unable to 12 find out the name and address of the child. 13 (2) The personal representative must give the public trustee a 14 copy of the will and a notice stating that the personal 15 representative is unable to find out the name and address of 16 the child. 17 (3) On receipt of the copy and notice, the public trustee must take 18 steps to find out the name and address of the child and, if the 19 child has died, the date of the death by asking for information 20 from the registrar of the court and the registrar under the 21 Births, Deaths and Marriages Registration Act 2003. 22 (4) Despite any other Act or law, if the registrar of the court 23 receives a request from the public trustee under subsection 24 (3), the registrar must provide the public trustee with the name 25 and address of the child, on the making of the parentage order, 26 held in the court's records. 27 (5) The Births, Deaths and Marriages Registration Act 2003, 28 section 44 does not apply to a request for information made 29 under subsection (3) to the registrar under that Act. 30 (6) If, after taking the steps mentioned in subsection (3)-- 31 (a) the public trustee finds out the name, address or date of 32 death of the child, the public trustee must give a notice 33 to the personal representative stating-- 34 Page 32

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 3 Effect of a parentage order [s 42] (i) that the name or address has been found out; or 1 (ii) that it has been found out that the child has died; 2 and 3 (b) to the extent the public trustee is unable to find out the 4 name and address of the child or whether the child has 5 died, the public trustee must give a notice to the 6 personal representative stating what details the public 7 trustee has been unable to find out. 8 42 Public trustee is trustee if bequest to unlocatable child 9 (1) This section applies if-- 10 (a) under a will made after the commencement of this 11 section, the testator makes a disposition of property to a 12 person who is described-- 13 (i) as being a child of the testator or of another person; 14 and 15 (ii) as having had his or her parentage transferred to 16 another person or persons as a result of a parentage 17 order; and 18 (b) the personal representative of the testator is given a 19 notice by the public trustee under section 41(6). 20 (2) The public trustee is a trustee for the child on the trusts stated 21 in, or arising under, the will. 22 (3) If the personal representative transfers property to the public 23 trustee as trustee for the child, the personal representative is 24 taken to have transferred the property to the child. 25 (4) Subsections (2) and (3) do not apply if the child died before 26 the testator or, for another reason, is not entitled to an interest 27 under the will. 28 (5) If the public trustee gives the personal representative a notice 29 that the child has disclaimed property to which the child was 30 entitled under the will, the notice is, for the purpose of 31 Page 33

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 3 Effect of a parentage order [s 43] administering the estate, sufficient evidence that the child has 1 disclaimed the property. 2 43 Public trustee's fees for involvement 3 (1) The public trustee may charge fees for taking steps under 4 section 41(3) or (6) or for acting as trustee under section 42. 5 (2) The personal representative must pay to the public trustee out 6 of the testator's estate any fees charged by the public trustee 7 under subsection (1) and any fees or costs incurred by the 8 public trustee in taking steps under section 41(3) or (6) or in 9 acting as trustee under section 42. 10 44 Transfer or distribution of property by trustee 11 (1) Subject to this section, a trustee may transfer or distribute 12 property to persons who appear entitled to it without finding 13 out whether or not a parentage order has been made because 14 of which a person is or is not entitled to an interest in the 15 property. 16 (2) A trustee who transfers or distributes property under 17 subsection (1) is not liable to a person claiming directly or 18 indirectly because of a parentage order unless the trustee has 19 written or other notice of the claim before the transfer or 20 distribution. 21 (3) This section does not affect a person's right to follow property 22 into the hands of a person, other than a purchaser for value, 23 who has received it. 24 (4) In this section-- 25 trustee includes a personal representative. 26 Page 34

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 4 Discharge of a parentage order [s 45] Part 4 Discharge of a parentage order 1 45 Definitions for part 2 In this part-- 3 child means a child whose parentage was transferred to an 4 intended parent, or intended parents, under a parentage order. 5 interested person, for an application for a discharge order, 6 means-- 7 (a) if the child is 18 years or more--the child; or 8 (b) each of the child's birth parents and intended parents; or 9 (c) the Attorney-General. 10 46 Application for a discharge order 11 (1) An interested person may apply to the court for a discharge 12 order discharging a parentage order in relation to a child on 13 the ground that-- 14 (a) the parentage order was obtained by fraud, duress or 15 other improper means; or 16 (b) a consent required for the making of the parentage order 17 was, in fact, not given or was given for payment, reward 18 or other material benefit or advantage (other than the 19 birth mother's surrogacy costs); or 20 (c) there is an exceptional reason why the parentage order 21 should be discharged. 22 (2) The applicant must state the ground on which the application 23 is made. 24 (3) As soon as practicable after filing the application, the 25 applicant must serve a copy of it on each other interested 26 person (other than the Attorney-General). 27 Page 35

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 4 Discharge of a parentage order [s 47] (4) If the child is under 18 years, the applicant must also serve a 1 copy of the application on the child if the court considers it 2 appropriate having regard to the child's age. 3 (5) A served copy must state where and when the application is to 4 be heard. 5 (6) The court may dispense with the requirement to serve a copy 6 of the application on a person if the court is satisfied-- 7 (a) the applicant can not locate the person after making all 8 reasonable enquiries; or 9 (b) the person has died. 10 47 Making a discharge order 11 (1) On an application under this part, the court may make a 12 discharge order discharging a parentage order in relation to a 13 child. 14 (2) The court may make the discharge order only if the court is 15 satisfied of all of the following matters-- 16 (a) reasonable efforts have been made to serve the 17 application on-- 18 (i) each other interested person (other than the 19 Attorney-General); and 20 (ii) if the child is under 18 years but the court 21 considers it appropriate having regard to the child's 22 age--the child; 23 (b) one of the grounds mentioned in section 46(1)(a), (b) or 24 (c). 25 (3) If the court makes a discharge order, the court must, in the 26 same order, declare the first name and surname by which the 27 child is to be known after the making of the discharge order. 28 (4) In declaring a first name under subsection (3), the court must 29 have regard to the principle that a child's first name should be 30 retained except in special circumstances. 31 Page 36

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 4 Discharge of a parentage order [s 48] (5) Also, if the child has been served with a copy of the 1 application, in declaring a name under subsection (3) the court 2 must consider the child's views about his or her name. 3 (6) A declaration of names in a discharge order does not prevent a 4 subsequent change of name under a law of the State or the 5 Commonwealth. 6 (7) If the court makes a discharge order, it may also make any 7 other order it considers appropriate in the interests of justice 8 or to ensure the child's wellbeing and best interests, including 9 an order relating to-- 10 (a) the ownership or possession of property; or 11 (b) any matter affecting the child in relation to the duties, 12 powers, responsibilities and authority which, by law, 13 parents have in relation to children; or 14 (c) where the child is to live. 15 48 Effect of discharge order 16 (1) On the making of a discharge order, the rights, privileges, 17 duties, liabilities and relationships of the child and all other 18 persons are the same as if the parentage order being 19 discharged had not been made. 20 (2) However, the making of the discharge order does not affect-- 21 (a) anything lawfully done, or the consequences of anything 22 lawfully done, while the parentage order was in force; or 23 (b) a right, privilege or liability acquired, accrued or 24 incurred while the parentage order was in force. 25 (3) Also, for the purpose of applying a law relating to a sexual 26 offence where a familial relationship is relevant, the child is 27 taken, after the discharge order is made, to have both the 28 familial relationships that resulted from the making of the 29 parentage order as well as the familial relationships that result 30 from the making of the discharge order. 31 Page 37

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 5 Appeals [s 49] Part 5 Appeals 1 49 Appellants and appellable decisions 2 (1) Any of the birth parents or intended parents may appeal to the 3 Court of Appeal against a decision refusing an application by 4 an intended parent, or intended parents, for a parentage order. 5 (2) Any of the following persons may appeal to the Court of 6 Appeal against a decision granting or refusing an application 7 for a discharge order-- 8 (a) the child if 18 years or more or if, for section 46(4), the 9 court considered the child should be served with the 10 application; 11 (b) the birth parents; 12 (c) the intended parent, or intended parents; 13 (d) if the Attorney-General made the application--the 14 Attorney-General. 15 50 Appeal by rehearing 16 An appeal to the Court of Appeal is an appeal by way of 17 rehearing. 18 Part 6 Privacy 19 51 Hearing not to be in public 20 (1) This section applies to the hearing in the court or the Court of 21 Appeal of a proceeding under this Act relating to a child. 22 (2) The hearing for the proceeding is not open to the public. 23 (3) Despite section 20 of the Childrens Court Act 1992, a court 24 must exclude from the room in which the court is sitting a 25 Page 38

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 6 Privacy [s 52] person who is not-- 1 (a) the child; or 2 (b) an applicant or an appellant; or 3 (c) a respondent; or 4 (d) a birth parent; or 5 (e) an intended parent; or 6 (f) a lawyer of a party to the proceeding or of a person 7 mentioned in paragraphs (a) to (e); or 8 (g) a witness giving evidence. 9 (4) However, the court may permit a person to be present during 10 the hearing if the court is satisfied it is in the interests of 11 justice to do so. 12 52 Access to court records 13 (1) A person may not have access to the record of proceedings in 14 the court or the Court of Appeal in relation to a proceeding 15 under this Act relating to a child unless the court has, on 16 application by the person, given approval to the access. 17 Note-- 18 Despite subsection (1), if the registrar of the court receives a request 19 from the public trustee under section 41(3), the registrar must provide 20 the public trustee with the name and address of the child--see section 21 41(4). 22 (2) Any of the following persons may apply for access to the 23 record of proceedings-- 24 (a) the child if 18 years or more or if, for section 46(4), the 25 court considered the child should be served with the 26 application; 27 (b) a birth parent; 28 (c) an intended parent; 29 (d) the Attorney-General; 30 Page 39

 


 

Surrogacy Bill 2009 Chapter 3 Parentage orders Part 6 Privacy [s 53] (e) the chief executive. 1 (3) The court may give access to all or part of the record of 2 proceedings. 3 (4) Without limiting the reasons for which the court may refuse to 4 give a person access on an application under subsection (2), 5 the court may refuse to give access if-- 6 (a) the person has not produced to the registrar or another 7 appropriate officer of the court proof of the person's 8 identity; or 9 (b) the person has not complied with a requirement of the 10 court under any law or rule of practice relating to 11 inspection of and release of information generally from 12 its record of proceedings. 13 (5) In this section-- 14 record of proceedings includes-- 15 (a) a written transcript of the proceedings; and 16 (b) the documents in the court file for the proceedings; and 17 (c) an appeal book in relation to the proceedings. 18 53 Publishing identifying material 19 (1) This section applies to material (identifying material) that 20 identifies, or is likely to lead to the identification of, a person 21 as-- 22 (a) a child born as result of a surrogacy arrangement or a 23 child to whom a court proceeding under this Act relates; 24 or 25 (b) a party to a surrogacy arrangement; or 26 (c) a party to a court proceeding under this Act; or 27 (d) a person whose consent to a surrogacy arrangement, or 28 the making of a parentage order, is or was required. 29 Page 40

 


 

Surrogacy Bill 2009 Chapter 4 Miscellaneous Part 1 Offences [s 54] (2) A person must not publish identifying material unless written 1 consent to the publication has been given, for each identified 2 person, by-- 3 (a) for an identified person who is an adult--that person; or 4 (b) for an identified person who is the child and under 18 5 years-- 6 (i) if the child is residing with the birth mother--the 7 birth mother; or 8 (ii) otherwise--the intended parent, or intended 9 parents. 10 Maximum penalty-- 11 (a) for an individual--100 penalty units or 2 years 12 imprisonment; or 13 (b) for a corporation--1000 penalty units. 14 (3) In this section-- 15 identified person, in relation to identifying material, means a 16 person identified by the material as a person mentioned in 17 subsection (1)(a) to (d). 18 publish means publish to the public by television, radio, the 19 internet, newspaper, periodical, notice, circular or other form 20 of communication. 21 Chapter 4 Miscellaneous 22 Part 1 Offences 23 54 Territorial application 24 This part applies in relation to-- 25 Page 41

 


 

Surrogacy Bill 2009 Chapter 4 Miscellaneous Part 1 Offences [s 55] (a) acts done in Queensland regardless of the whereabouts 1 of the offender at the time the act is done; or 2 (b) acts done outside Queensland if the offender is 3 ordinarily resident in Queensland at the time the act is 4 done. 5 55 Advertisements and other published matters 6 (1) A person must not publish an advertisement, statement, notice 7 or other material that-- 8 (a) is intended or likely to induce a person to agree to act as 9 a birth mother; or 10 (b) seeks or purports to seek a person willing to act as a 11 birth mother; or 12 (c) states or implies that a person is willing to agree to act 13 as a birth mother; or 14 (d) states or implies that a person is willing to enter into a 15 surrogacy arrangement. 16 Maximum penalty--100 penalty units or 3 years 17 imprisonment. 18 (2) In this section-- 19 publish means publish to the public by television, radio, the 20 internet, newspaper, periodical, notice, circular or other form 21 of communication. 22 56 Commercial surrogacy arrangements prohibited 23 A person must not enter into or offer to enter into a 24 commercial surrogacy arrangement. 25 Maximum penalty--100 penalty units or 3 years 26 imprisonment. 27 Page 42

 


 

Surrogacy Bill 2009 Chapter 4 Miscellaneous Part 1 Offences [s 57] 57 Giving or receiving consideration 1 (1) A person must not give a payment, reward or other material 2 benefit or advantage (other than the reimbursement of the 3 birth mother's surrogacy costs) for another person-- 4 (a) agreeing to enter into or entering into a surrogacy 5 arrangement; or 6 (b) giving the intended parent, or intended parents, under a 7 surrogacy arrangement the permanent custody and 8 guardianship of a child born as a result of the surrogacy 9 arrangement; or 10 (c) consenting to the making of a parentage order for a child 11 born as a result of a surrogacy arrangement. 12 Maximum penalty--100 penalty units or 3 years 13 imprisonment. 14 (2) A person must not receive a payment, reward or other material 15 benefit or advantage (other than the reimbursement of the 16 birth mother's surrogacy costs) for the person or another 17 person-- 18 (a) agreeing to enter into or entering into a surrogacy 19 arrangement; or 20 (b) giving the intended parent, or intended parents, under a 21 surrogacy arrangement the permanent custody and 22 guardianship of a child born as a result of the surrogacy 23 arrangement; or 24 (c) consenting to the making of a parentage order for a child 25 born as a result of a surrogacy arrangement. 26 Maximum penalty--100 penalty units or 3 years 27 imprisonment. 28 58 Providing technical, professional or medical services for 29 a commercial surrogacy arrangement 30 (1) A person must not intentionally provide a technical, 31 professional or medical service to another person if-- 32 Page 43

 


 

Surrogacy Bill 2009 Chapter 4 Miscellaneous Part 2 Court matters [s 59] (a) the person knows the other person is, or intends to be, 1 party to a commercial surrogacy arrangement; and 2 (b) the person provides the service with the intention of 3 assisting the other person to become pregnant for the 4 purpose of the arrangement. 5 Maximum penalty--100 penalty units or 3 years 6 imprisonment. 7 (2) A person does not commit an offence under subsection (1) if 8 the person provides a technical, professional or medical 9 service to a woman after she has become pregnant. 10 Part 2 Court matters 11 59 Court rules 12 (1) The Uniform Civil Procedure Rules 1999 apply in relation to 13 proceedings under this Act as if the proceedings were 14 proceedings in the District Court. 15 (2) However, the Uniform Civil Procedure Rules 1999 do not 16 apply for a matter in relation to a proceeding in the Childrens 17 Court that is provided for under the Childrens Court Rules 18 1997. 19 60 Court fees and other matters 20 The Uniform Civil Procedure (Fees) Regulation 2009 applies 21 in relation to proceedings in the Childrens Court under this 22 Act as if the proceedings were proceedings in the District 23 Court. 24 Page 44

 


 

Surrogacy Bill 2009 Chapter 5 Repeal and transitional provisions Part 1 Repeal [s 61] Chapter 5 Repeal and transitional 1 provisions 2 Part 1 Repeal 3 61 Repeal of Surrogate Parenthood Act 1988 4 The Surrogate Parenthood Act 1988, No. 65 is repealed. 5 Part 2 Transitional provisions for 6 Surrogacy Act 2009 7 62 Definitions for part 8 In this part-- 9 commencement means the commencement of this section. 10 pre-commencement birth mother, for a pre-commencement 11 surrogacy arrangement, means a person who, before the 12 commencement, corresponded to a birth mother under a 13 surrogacy arrangement. 14 pre-commencement intended parent, for a 15 pre-commencement surrogacy arrangement, means a person 16 who, before the commencement, corresponded to an intended 17 parent under a surrogacy arrangement. 18 pre-commencement surrogacy arrangement means an 19 arrangement entered into between a pre-commencement birth 20 mother and a pre-commencement intended parent, or 21 pre-commencement intended parents, before the 22 commencement that corresponded to a surrogacy 23 arrangement. 24 Page 45

 


 

Surrogacy Bill 2009 Chapter 5 Repeal and transitional provisions Part 2 Transitional provisions for Surrogacy Act 2009 [s 63] 63 Application for parentage order in relation to 1 pre-commencement surrogacy arrangement 2 (1) This section applies if-- 3 (a) a pre-commencement birth mother and a 4 pre-commencement intended parent, or 5 pre-commencement intended parents, were parties to a 6 pre-commencement surrogacy arrangement; and 7 (b) the pre-commencement surrogacy arrangement was not 8 a commercial surrogacy arrangement; and 9 (c) a child has been born as a result of the 10 pre-commencement surrogacy arrangement; and 11 (d) the pre-commencement surrogacy arrangement was 12 made before the child was conceived. 13 (2) Within 2 years after the commencement, the 14 pre-commencement intended parent, or pre-commencement 15 intended parents, may apply to the court for a parentage order. 16 (3) Chapter 3 applies in relation to the application and any 17 parentage order made on the application is a parentage order 18 under chapter 3. 19 (4) In addition to the court's power under section 23, the court 20 may dispense with a requirement under chapter 3 (other than a 21 requirement mentioned in section 22(2)(e)(iii)) if the court 22 considers it is-- 23 (a) for the wellbeing, and in the best interests, of the child 24 born as a result of the pre-commencement surrogacy 25 arrangement to dispense with the requirement; or 26 (b) otherwise impractical for the pre-commencement 27 intended parent, or pre-commencement intended 28 parents, to comply with the requirement. 29 Example for paragraph (b)-- 30 It was impracticable to obtain independent legal advice before 31 entering into the pre-commencement surrogacy arrangement. 32 Page 46

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 1 Amendment of this Act [s 64] (5) However, to dispense with the requirement under section 1 22(2)(h) for a person to consent to the making of the 2 parentage order, the circumstances for giving the dispensation 3 must be either that-- 4 (a) the person has died or is not a person with capacity to 5 give the consent; or 6 (b) an applicant can not locate the person after making all 7 reasonable enquiries. 8 Chapter 6 Amendments 9 Part 1 Amendment of this Act 10 64 Act amended 11 This part amends this Act. 12 65 Amendment of long title 13 (1) Long title, `arrangements, to prohibit'-- 14 omit, insert-- 15 `arrangements and to prohibit'. 16 (2) Long title, from `, to make particular'-- 17 omit. 18 Page 47

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 2 Amendment of Adoption Act 2009 [s 66] Part 2 Amendment of Adoption Act 1 2009 2 66 Act amended 3 This part amends the Adoption Act 2009. 4 67 Amendment of s 76 (Eligibility for inclusion in register) 5 Section 76(1)-- 6 insert-- 7 `(ea) the person-- 8 (i) is not an intended parent under a surrogacy 9 arrangement within the meaning of the Surrogacy 10 Act 2009; and 11 (ii) if the person has been an intended parent for a 12 surrogacy arrangement within the meaning of the 13 Surrogacy Act 2009--the surrogacy arrangement 14 ended not less than 6 months earlier; and'. 15 Part 3 Amendment of Births, Deaths 16 and Marriages Registration Act 17 2003 18 68 Act amended 19 This part and schedule 1 amend the Births, Deaths and 20 Marriages Registration Act 2003. 21 69 Amendment of s 3 (Objects) 22 (1) Section 3(a)(ii)-- 23 Page 48

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 70] renumber as section 3(a)(iii). 1 (2) Section 3(a)-- 2 insert-- 3 `(ii) changes of parentage under the Surrogacy Act 4 2009; and'. 5 70 Insertion of new s 10A 6 After section 10-- 7 insert-- 8 `10A Limitation on registration of parentage details 9 `(1) In relation to the registration of a relevant event for a child-- 10 (a) the child's parent, or 1 of the child's parents, must be 11 registered as the child's mother or as the child's father; 12 and 13 (b) not more than 1 person may be registered as the child's 14 mother or as the child's father; and 15 (c) not more than 2 people in total may be registered as the 16 child's parents (however described). 17 `(2) In this section-- 18 relevant event, for a child, means-- 19 (a) the child's birth; or 20 (b) the child's adoption; or 21 (c) the child's change of parentage under a parentage order 22 or discharge order.'. 23 71 Amendment of s 13 (Application to change child's first 24 name within a year of birth) 25 Section 13(2), (3) and (4), `register of births or adopted 26 children register'-- 27 Page 49

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 72] omit, insert-- 1 `relevant child register'. 2 72 Amendment of s 14 (Reregistering a birth or adoption) 3 (1) Section 14, `birth or adoption'-- 4 omit, insert-- 5 `relevant event'. 6 (2) Section 14(1)-- 7 insert-- 8 `(c) a person's parentage is changed by a parentage order.'. 9 (3) Section 14(5)(a), `register'-- 10 omit, insert-- 11 `relevant child register'. 12 (4) Section 14-- 13 insert-- 14 `(10) In this section-- 15 relevant event, for a person, means the most recent of the 16 following events for the person-- 17 (a) birth; 18 (b) adoption; 19 (c) change of parentage under a parentage order.'. 20 73 Amendment of s 15 (Change of name by registration) 21 Section 15-- 22 insert-- 23 `(5) Also, changes to a person's name under a parentage order or 24 discharge order are not dealt with under this part but under 25 sections 41D and 41E.'. 26 Page 50

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 74] 74 Amendment of s 17 (Application to register change of 1 child's name) 2 Section 17(3), `register of births or adopted children 3 register'-- 4 omit, insert-- 5 `relevant child register'. 6 75 Amendment of s 19 (Registration of change of name) 7 (1) Section 19(3), `the register,'-- 8 omit, insert-- 9 `the relevant child register,'. 10 (2) Section 19(3), `the register of births or adopted children 11 register'-- 12 omit, insert-- 13 `the relevant child register'. 14 76 Amendment of s 20 (Notation of change of name other 15 than by registration) 16 (1) Section 20(2), (3) and (5), `register of births or adopted 17 children register'-- 18 omit, insert-- 19 `relevant child register'. 20 (2) Section 20(4)(a), `register of births'-- 21 omit, insert-- 22 `relevant child register'. 23 77 Amendment of s 41 (Registering events other than 24 adoptions in register) 25 (1) Section 41, heading, after `adoptions'-- 26 Page 51

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 78] insert-- 1 `or changes of parentage'. 2 (2) Section 41(1), after `adoption'-- 3 insert-- 4 `or a change of parentage under a parentage order or discharge 5 order'. 6 78 Insertion of new ss 41D and 41E 7 After section 41C-- 8 insert-- 9 `41D Registering change of parentage under parentage 10 order 11 `(1) This section applies if-- 12 (a) a parentage order is made in relation to a child whose 13 birth was registered in Queensland; and 14 (b) the registrar receives-- 15 (i) an application to register the order and the 16 application contains the information prescribed 17 under a regulation; and 18 (ii) an original copy of the parentage order. 19 `(2) The registrar must register the transfer of parentage by 20 incorporating into the parentage order register information 21 from the application to register the parentage order and the 22 original copy of the parentage order. 23 `(3) Also, the registrar must close the child's birth entry by-- 24 (a) noting, on the birth entry (the closed entry), a reference 25 to the parentage order entry; and 26 (b) noting, on the new parentage order entry, a reference to 27 the closed entry. 28 Page 52

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 78] `41E Reregistering birth if discharge order 1 `(1) This section applies if-- 2 (a) the registrar has registered under section 41D the 3 transfer of a person's parentage; and 4 (b) a discharge order is made in relation to the parentage 5 order for the person; and 6 (c) the registrar receives-- 7 (i) an application to register the discharge order and 8 the application contains the information prescribed 9 under a regulation; and 10 (ii) an original copy of the discharge order. 11 `(2) The registrar must close the entry in the parentage order 12 register for the person by-- 13 (a) incorporating, in the entry, information from the 14 application to register the discharge order and the 15 original copy of the discharge order; and 16 (b) noting on the entry-- 17 (i) that the parentage order has been discharged; and 18 (ii) that the person's birth has been reregistered under 19 this section; and 20 (iii) a reference to the new entry made under subsection 21 (3). 22 `(3) The registrar must also reregister the person's birth by making 23 a new entry in the birth register that includes-- 24 (a) the person's names as declared in the discharge order; 25 and 26 (b) all the information that was in the entry that was closed 27 under section 41D (other than the person's names and 28 information about the parentage order or discharge 29 order); and 30 (c) a note that the new entry was made under this section; 31 and 32 Page 53

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 79] (d) a reference to the entry closed under subsection (2). 1 `(4) The registrar may make any other notations in the birth 2 register or parentage order register that the registrar considers 3 necessary to ensure the registers include the correct 4 information for the person.'. 5 79 Amendment of s 44 (Obtaining information from the 6 registrar) 7 (1) Section 44(13)-- 8 renumber as section 44(19). 9 (2) Section 44-- 10 insert-- 11 `(13) The registrar may only give requested information relating to 12 an entry closed under section 41D or 41E to any of the 13 following persons-- 14 (a) a birth parent for the parentage order; 15 (b) an intended parent for the parentage order; 16 (c) if the child for the parentage order is at least 18 17 years--the child; 18 (d) a guardian appointed under the Guardianship and 19 Administration Act 2000 for any of the persons 20 mentioned in paragraphs (a) to (c); 21 (e) if an administrator has been appointed under the 22 Guardianship and Administration Act 2000, section 14, 23 for the child--the administrator; 24 (f) if a personal representative has been appointed for the 25 child--the personal representative; 26 (g) an officer of, or person acting for, a law enforcement 27 body; 28 (h) the Attorney-General. 29 Page 54

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 79] `(14) When applying for information from a closed entry, a person 1 mentioned in subsection (13)(d), (e) or (f) must-- 2 (a) produce to the registrar-- 3 (i) a document verifying the person's identity; and 4 (ii) the person's instrument of appointment; and 5 (b) show that the information is required to discharge a 6 function under the person's appointment. 7 `(15) When applying for information from a closed entry, a person 8 mentioned in subsection (13)(g) must-- 9 (a) produce a document verifying the person's identity to 10 the registrar; and 11 Example of documentary proof of an officer's identity-- 12 an identity card issued by a law enforcement body, with a photo 13 of the officer, that states the officer's name, rank and registered 14 number 15 (b) show that the information is required to discharge-- 16 (i) a function of the law enforcement body; or 17 (ii) the person's duty as an officer of the law 18 enforcement body. 19 `(16) Despite subsection (13), the registrar may give requested 20 information relating to an entry closed under section 41D or 21 41E to a child who is under 18 years if the birth parents and 22 the intended parent, or intended parents, for the parentage 23 order consent to the child's application for the information. 24 `(17) For subsection (16), a person's consent is not required if-- 25 (a) the person has died; or 26 (b) the child can not locate the person after making all 27 reasonable enquiries. 28 `(18) If the registrar issues a certificate from an entry closed under 29 section 41D or 41E, the registrar must stamp the certificate or 30 mark it in another way to indicate that the certificate is not for 31 official use.'. 32 Page 55

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 80] (3) Section 44(19)-- 1 insert-- 2 `birth parent means-- 3 (a) for a parentage order under the Surrogacy Act 2009--a 4 birth parent under that Act; or 5 (b) for another parentage order--a person corresponding, 6 under the law of another Australian jurisdiction where 7 the order was made, to a birth parent under the 8 Surrogacy Act 2009. 9 intended parent means-- 10 (a) for a parentage order under the Surrogacy Act 2009-- 11 an intended parent under that Act; or 12 (b) for another parentage order--a person corresponding, 13 under the law of another Australian jurisdiction where 14 the order was made, to an intended parent under the 15 Surrogacy Act 2009. 16 law enforcement body means-- 17 (a) the Queensland Police Service or a police service of 18 another State; or 19 (b) the Australian Federal Police; or 20 (c) the Crime and Misconduct Commission; or 21 (d) the Australian Crime Commission.'. 22 80 Insertion of new s 44A 23 After section 44-- 24 insert-- 25 `44A Addendum to birth certificate 26 `(1) This section applies if-- 27 (a) a person (the applicant)-- 28 Page 56

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 81] (i) applies to the registrar, in writing, for information 1 about an event that is, or may be, in a register kept 2 by the registrar; and 3 (ii) is at least 18 years at the time of making the 4 application; and 5 (b) the applicant's birth was registered in Queensland; and 6 (c) a parentage order in relation to the applicant was 7 registered in the parentage order register under section 8 41D (even if the entry in the parentage order register 9 was later closed under section 41E); and 10 (d) the registrar issues a certificate certifying particulars 11 contained in an entry about the birth of the applicant. 12 `(2) When the registrar issues a certificate mentioned in subsection 13 (1)(d), the registrar must attach an addendum to the certificate 14 stating that further information is available about the entry. 15 `(3) To remove any doubt, it is declared that the registrar must not 16 issue the addendum to any person other than the applicant.'. 17 81 Insertion of new pt 9, div 5 18 Part 9, after section 62-- 19 insert-- 20 `Division 5 Transitional provisions for 21 Surrogacy Act 2009 22 `63 Application to alter or add parentage details as result 23 of amendments to the Status of Children Act 1978 24 `(1) This section applies if-- 25 (a) a woman (the mother) has undergone a fertilisation 26 procedure within the meaning of the Status of Children 27 Act 1978, as a result of which she became pregnant and 28 gave birth to a child; and 29 Page 57

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 81] (b) by application of a presumption in that Act the mother's 1 partner is presumed to be a parent of the child; and 2 (c) the child's birth was registered before the 3 commencement of this section. 4 `(2) An application may be made to the registrar for the addition of 5 information in the register of births about the identity of the 6 mother's partner as a parent of the child. 7 `(3) The registrar must include the additional information in the 8 register of births if the registrar is satisfied in relation to the 9 matters mentioned in subsections (4) and (5). 10 `(4) The registrar must not include additional information in the 11 child's birth entry about the identity of the mother's partner as 12 a parent of the child unless-- 13 (a) the application is made jointly by the mother and the 14 mother's partner; and 15 (b) if the child's birth entry already includes information 16 that identifies a person as the father of the child-- 17 (i) the Supreme Court has made an order for the 18 removal of the particulars from the birth entry that 19 identifies the father of the child; and 20 (ii) the registrar removes those particulars from the 21 birth entry; and 22 (c) the application is accompanied by a statutory 23 declaration made by the mother and the mother's partner 24 stating that-- 25 (i) they were in a de facto relationship at the time the 26 mother underwent the procedure mentioned in 27 subsection (1)(a); and 28 (ii) the mother's partner consented to the procedure 29 that resulted in the pregnancy. 30 `(5) An application made under this section must be in the 31 approved form. 32 Page 58

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003 [s 82] `(6) This section has effect despite sections 10 and 42 and the 1 Status of Children Act 1978, section 37. 2 `64 Amendment of regulation by Surrogacy Act 2009 3 does not affect powers of Governor in Council 4 `The amendment of the Births, Deaths and Marriages 5 Registration Regulation 2003 by the Surrogacy Act 2009 does 6 not affect the power of the Governor in Council to further 7 amend the regulation or to repeal it.'. 8 82 Amendment of sch 2 (Dictionary) 9 (1) Schedule 2-- 10 insert-- 11 `discharge order means-- 12 (a) a discharge order under the Surrogacy Act 2009; or 13 (b) an order of another Australian jurisdiction that 14 corresponds to an order mentioned in paragraph (a). 15 parentage order means-- 16 (a) a parentage order under the Surrogacy Act 2009; or 17 (b) an order of another Australian jurisdiction that 18 corresponds to an order mentioned in paragraph (a). 19 relevant child register, for a person, means whichever of the 20 following registers has an open entry for the person-- 21 (a) the birth register; 22 (b) the adopted children register; 23 (c) the parentage order register.'. 24 (2) Schedule 2, definition registrable event, paragraph (c)-- 25 renumber as paragraph (d). 26 (3) Schedule 2, definition registrable event-- 27 Page 59

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 4 Amendment of Births, Deaths and Marriages Registration Regulation 2003 [s 83] insert-- 1 `(c) a change of parentage under a parentage order; or'. 2 Part 4 Amendment of Births, Deaths 3 and Marriages Registration 4 Regulation 2003 5 83 Regulation amended 6 This part amends the Births, Deaths and Marriages 7 Registration Regulation 2003. 8 84 Amendment of s 13 (Information and documents for 9 registering events in register--Act, s 41) 10 (1) Section 13, heading, `s 41'-- 11 omit, insert-- 12 `ss 41, 41D or 41E'. 13 (2) Section 13-- 14 insert-- 15 `(5) For sections 41D(1) and 41E(1) of the Act, the information in 16 schedule 1, part 1 is prescribed information for an application 17 to register a parentage order or discharge order.'. 18 85 Amendment of s 15 (Information that may be obtained 19 from register--Act, s 44) 20 Section 15(5)-- 21 omit, insert-- 22 `(5) For section 44(6)(c) of the Act, the following information is 23 prescribed for a birth-- 24 Page 60

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 4 Amendment of Births, Deaths and Marriages Registration Regulation 2003 [s 86] (a) all information about any marriage of the child's 1 parents; 2 (b) if a woman registered as the child's mother or parent 3 has, or has had, surnames other than the surname 4 recorded at the child's birth or the woman's maiden 5 surname--the other surnames; 6 (c) if 2 persons are registered as the child's parents 7 (however described) and either person has children that 8 are not the other person's children--the names of those 9 children.'. 10 86 Amendment of s 16 (Information for commemorative birth 11 certificate) 12 Section 16(1)(b) and (c)-- 13 omit, insert-- 14 `(b) the full names of a father or adoptive father of the child 15 at the time of the child's birth; 16 (c) the first names, and maiden surname, of a mother or 17 adoptive mother of the child at the time of the child's 18 birth; 19 (ca) if a person is registered as a parent, but not as the father 20 or mother, of the child--the full name of the person at 21 the time of the child's birth;'. 22 87 Amendment of sch 1 (Application information) 23 (1) Schedule 1, part 1, items 5 to 7-- 24 renumber as items 6 to 8. 25 (2) Schedule 1, part 1-- 26 insert-- 27 `5 If a person is registered as a parent, but not as the father or mother, of the child, the person's-- (a) name at the time of the birth; and Page 61

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 4 Amendment of Births, Deaths and Marriages Registration Regulation 2003 [s 88] (b) place of birth; and (c) age at the time of the birth; and (d) occupation at the time of the birth.'. 88 Amendment of sch 2 (Information for certificates) 1 (1) Schedule 2, part 1, items 5 to 10-- 2 renumber as items 6 to 11. 3 (2) Schedule 2, part 1-- 4 insert-- 5 `5 If a person is registered as a parent, but not as the father or mother, of the child, the person's-- (a) name at the time of the birth; and (b) place of birth; and (c) age at the time of the birth; and (d) occupation at the time of the birth.'. (3) Schedule 2, part 4, items 7 to 17-- 6 renumber as items 8 to 18. 7 (4) Schedule 2, part 4, items 5 and 6-- 8 omit, insert-- 9 `7 For a parent, other than the father or mother, of the deceased-- (a) the parent's name; and (b) the parent's occupation.'. Page 62

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 5 Amendment of the Criminal Code [s 89] Part 5 Amendment of the Criminal 1 Code 2 89 Act amended 3 This part and schedule 1 amend the Criminal Code. 4 90 Amendment of s 222 (Incest) 5 Section 222-- 6 insert-- 7 `(7A) Also, if a parentage order is made under the Surrogacy Act 8 2009, a reference in this section to an offspring or other lineal 9 descendant, or a sibling or a parent includes a relationship of 10 that type that-- 11 (a) existed before the making of the order; or 12 (b) came into existence as a result of the making of the 13 order regardless of whether the order has been 14 discharged.'. 15 91 Amendment of s 363 (Child-stealing) 16 (1) Section 363(2)-- 17 omit. 18 (2) Section 363(3)-- 19 renumber as section 363(2). 20 (3) Section 363-- 21 insert-- 22 `(3) In this section-- 23 corresponding parentage order means an order under a law 24 of another State that provides for a parentage order similar to 25 a parentage order under the Surrogacy Act 2009. 26 Page 63

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 6 Amendment of Domicile Act 1981 [s 92] parent includes-- 1 (a) for a child who has been legally adopted in Queensland 2 or in another State--a person who has adopted the child; 3 or 4 (b) for a child whose parentage has been transferred by a parentage order under the Surrogacy Act 2009 or a 6 5 corresponding parentage order--a person who is a 7 parent of the child under the order; 8 but does not include a natural parent of the child.'. 9 Part 6 Amendment of Domicile Act 10 1981 11 92 Act amended 12 This part amends the Domicile Act 1981. 13 93 Amendment of s 8 (Domicile of certain children) 14 (1) Section 8(4) to (6)-- 15 renumber as section 8(6) to (8)-- 16 (2) Section 8-- 17 insert-- 18 `(4) Subsection (5) applies if a child's parentage has been 19 transferred by-- 20 (a) a parentage order under the Surrogacy Act 2009; or 21 (b) an order of another Australian jurisdiction (also a 22 parentage order) that corresponds to a parentage order 23 made under the Surrogacy Act 2009. 24 `(5) From the time the parentage order is made, the child's 25 domicile is-- 26 Page 64

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 6 Amendment of Domicile Act 1981 [s 93] (a) if, on the making of the parentage order, the child has 2 1 parents--the domicile the child would have if the child 2 were a child born in wedlock to those parents; and 3 (b) if, on the making of the parentage order, the child has 1 4 parent only--the domicile of that parent or, if that parent 5 has died, the domicile that parent had at the time of 6 death.'. 7 (3) Section 8(7), as renumbered, `(2) or (3)'-- 8 omit, insert-- 9 `(2), (3) or (5)'. 10 (4) Section 8-- 11 insert-- 12 `(9) Subsection (10) applies if a parentage order for a child is 13 discharged by-- 14 (a) a discharge order under the Surrogacy Act 2009; or 15 (b) an order of another Australian jurisdiction (also a 16 discharge order) that corresponds to a discharge order 17 made under the Surrogacy Act 2009. 18 `(10) The child's domicile is-- 19 (a) the domicile stated in, or dealt with under, the discharge 20 order; or 21 (b) if there is no provision in the discharge order dealing 22 with the child's domicile--the domicile the child would 23 have if the transfer of parentage under the parentage 24 order had not taken place.'. 25 Page 65

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 7 Amendment of Evidence Act 1977 [s 94] Part 7 Amendment of Evidence Act 1 1977 2 94 Act amended 3 This part amends the Evidence Act 1977. 4 95 Amendment of s 21AC (Definitions for div 4A) 5 (1) Section 21AC-- 6 insert-- 7 `parentage order relationship means a relationship arising 8 because of-- 9 (a) a parentage order under the Surrogacy Act 2009; or 10 (b) an order of another Australian jurisdiction that 11 corresponds to a parentage order made under that Act.'. 12 (2) Section 21AC, definition prescribed relationship, paragraph 13 (a), `or step relationship'-- 14 omit, insert-- 15 `, step or parentage order relationship'. 16 Part 8 Amendment of Guardianship 17 and Administration Act 2000 18 96 Act amended 19 This part and schedule 1 amend the Guardianship and 20 Administration Act 2000. 21 Page 66

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 9 Amendment of Powers of Attorney Act 1998 [s 97] 97 Amendment of sch 2 (Types of matters) 1 Schedule 2, part 2, section 3-- 2 insert-- 3 `(f) entering into, or agreeing to enter into, a surrogacy 4 arrangement under the Surrogacy Act 2009; 5 (g) consenting to the making or discharge of a parentage 6 order under the Surrogacy Act 2009.'. 7 Part 9 Amendment of Powers of 8 Attorney Act 1998 9 98 Act amended 10 This part amends the Powers of Attorney Act 1998. 11 99 Amendment of sch 2 (Types of matters) 12 Schedule 2, part 2, section 3-- 13 insert-- 14 `(f) entering into, or agreeing to enter into, a surrogacy 15 arrangement under the Surrogacy Act 2009; 16 (g) consenting to the making or discharge of a parentage 17 order under the Surrogacy Act 2009.'. 18 Page 67

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 100] Part 10 Amendment of Status of 1 Children Act 1978 2 100 Act amended 3 This part and schedule 1 amend the Status of Children Act 4 1978. 5 101 Amendment of s 4 (Definitions) 6 Section 4-- 7 insert-- 8 `artificial insemination means the insertion of semen into a 9 woman's reproductive tract otherwise than by sexual 10 intercourse and regardless of whether the insertion is done by 11 the woman or another person. 12 semen means semen or sperm. 13 womb includes fallopian tubes.'. 14 102 Amendment of s 8 (Recognition of paternity) 15 Section 8(1)(c) and (3), `paternity'-- 16 omit, insert-- 17 `parentage'. 18 103 Amendment of s 9 (Filing of certain instruments with 19 registrar-general) 20 Section 9(3), `paternity'-- 21 omit, insert-- 22 `parentage'. 23 Page 68

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 104] 104 Amendment of s 10 (Declaration of paternity) 1 (1) Section 10, heading, `paternity'-- 2 omit, insert-- 3 `parentage'. 4 (2) Section 10(1)-- 5 omit, insert-- 6 `(1) A person who-- 7 (a) alleges that any named person is the parent of her child; 8 or 9 (b) alleges that the relationship of parent and child exists 10 between the person and another named person; or 11 (c) having a proper interest in the result, wishes to have 12 determined the question whether the relationship of 13 parent and child exists between 2 named persons; 14 may apply to the Supreme Court for a declaration of parentage 15 and the Supreme Court may, if it is proved to its satisfaction 16 that the relationship exists, make the declaration whether the 17 parent or the child or both of them are living or dead.'. 18 (3) Section 10(2), `father'-- 19 omit, insert-- 20 `parent'. 21 105 Amendment of s 18 (Implantation 22 procedure--Presumption as to status where donor 23 semen used) 24 Section 18(1)-- 25 omit, insert-- 26 `(1) A reference in this section to a fertilisation procedure is a 27 reference to the procedure of implanting in the womb of a 28 woman-- 29 Page 69

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 106] (a) an embryo derived from an ovum produced by her and 1 fertilised outside her body by semen produced by a man 2 other than her husband; or 3 (b) for the purpose of fertilising an ovum inside her body, 4 an ovum produced by her together with semen produced 5 by a man other than her husband.'. 6 106 Amendment of s 19 (Implantation 7 procedure--Presumption as to status where donor ovum 8 used) 9 Section 19(1)-- 10 omit, insert-- 11 `(1) A reference in this section to a fertilisation procedure is a 12 reference to the procedure of implanting in the womb of a 13 woman-- 14 (a) an embryo derived from an ovum produced by another 15 woman and fertilised by-- 16 (i) semen produced by the husband of the 17 first-mentioned woman; or 18 (ii) semen produced by a man other than the husband 19 of the first-mentioned woman; or 20 (b) for the purpose of fertilising an ovum inside her body, 21 an ovum produced by another woman together with 22 semen produced by the husband of the first-mentioned 23 woman or by a man other than her husband.'. 24 107 Insertion of new pt 3, div 2, sdiv 2A 25 Part 3, division 2-- 26 insert-- 27 Page 70

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 107] `Subdivision 2A Fertilisation procedures--women 1 with female de facto partner's 2 consent 3 `19A Interpretation 4 `In this subdivision-- 5 fertilisation procedure means a procedure mentioned in 6 sections 19C to 19E. 7 `19B Application of sdiv 2A 8 `This subdivision applies if a woman has a female de facto 9 partner and undergoes a fertilisation procedure with the 10 consent of the de facto partner. 11 Note-- 12 For the meaning of de facto partner see the Acts Interpretation Act 13 1954, section 32DA. 14 `19C Artificial insemination--Presumption as to status 15 `(1) A reference in this section to a fertilisation procedure is a 16 reference to the procedure of artificial insemination. 17 `(2) If semen is used in a fertilisation procedure of the woman, the 18 man who produced the semen has no rights or liabilities 19 relating to a child born as a result of a pregnancy for which the 20 semen has been used. 21 `(3) The woman's de facto partner is presumed, for all purposes, to 22 be a parent of any child born as a result of the pregnancy. 23 `19D Implantation procedure--Presumption as to status 24 where donor semen used 25 `(1) A reference in this section to a fertilisation procedure is a 26 reference to the procedure of implanting in the womb of a 27 woman-- 28 Page 71

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 107] (a) an embryo derived from an ovum produced by her and 1 fertilised outside her body by semen produced by a man 2 who is not her husband; or 3 (b) for the purpose of fertilising an ovum inside her body, 4 an ovum produced by the woman together with semen 5 produced by a man other than her husband. 6 `(2) If the woman has undergone a fertilisation procedure as a 7 result of which she has become pregnant, the man who 8 produced the semen has no rights or liabilities relating to any 9 child born as a result of a pregnancy for which the semen has 10 been used. 11 `(3) The woman's de facto partner is presumed, for all purposes, to 12 be a parent of any child born as a result of the pregnancy. 13 `19E Implantation procedure--Presumption as to status 14 where donor ovum used 15 `(1) A reference in this section to a fertilisation procedure is a 16 reference to the procedure of implanting in the womb of a 17 woman-- 18 (a) an embryo derived from an ovum produced by another 19 woman and fertilised by semen produced by a man who 20 is not the husband of the first-mentioned woman; or 21 (b) for the purpose of fertilising an ovum inside her body, 22 an ovum produced by another woman together with 23 semen produced by a man other than the first-mentioned 24 woman's husband. 25 `(2) If a woman has undergone a fertilisation procedure as a result 26 of which she has become pregnant-- 27 (a) the woman is presumed, for all purposes, to have 28 become pregnant as a result of the fertilisation of an 29 ovum produced by her and to be the mother of any child 30 born as a result of the pregnancy; and 31 (b) the other woman who produced the ovum from which 32 the embryo used in the procedure was derived is 33 Page 72

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 108] presumed, for all purposes, not to be the mother of any 1 child born as a result of the pregnancy. 2 `(3) The woman's de facto partner is presumed, for all purposes, to 3 be a parent of the child. 4 `(4) Also, the man who produced the semen has no rights or 5 liabilities relating to any child born as a result of a pregnancy 6 for which the semen has been used. 7 `19F Irrebuttable presumptions 8 `A presumption declared to exist under sections 19C to 19E is 9 irrebuttable. 10 `19G Presumption without consent 11 `(1) In any proceedings in relation to the operation of this division 12 a de facto partner's consent mentioned in section 19B must be 13 presumed unless the contrary is proved. 14 `(2) The presumption is rebuttable.'. 15 108 Replacement of s 20 (Application of sdiv 3) 16 Section 20-- 17 omit, insert-- 18 `20 Application of sdiv 3 19 `This subdivision applies if-- 20 (a) a married woman undergoes a fertilisation procedure 21 other than with her husband's consent; or 22 (b) a woman who is not married and does not have a de 23 facto partner undergoes a fertilisation procedure; or 24 (c) a woman who has a de facto partner undergoes a 25 fertilisation procedure other than with her partner's 26 consent.'. 27 Page 73

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 109] 109 Amendment of s 22 (Implantation 1 procedure--Presumption as to status where donor 2 semen used) 3 Section 22(1)-- 4 omit, insert-- 5 `(1) A reference in this section to a fertilisation procedure is a 6 reference to the procedure of implanting in the womb of a 7 woman-- 8 (a) an embryo derived from an ovum produced by her and 9 fertilised outside her body by semen produced by a man 10 who is not her husband; or 11 (b) for the purpose of fertilising an ovum inside her body, 12 an ovum produced by the woman together with semen 13 produced by a man who is not her husband.'. 14 110 Amendment of s 23 (Implantation 15 procedure--Presumption as to status where donor ovum 16 used) 17 Section 23(1)-- 18 omit, insert-- 19 `(1) A reference in this section to a fertilisation procedure is a 20 reference to the procedure of implanting in the womb of a 21 woman-- 22 (a) an embryo derived from an ovum produced by another 23 woman and fertilised by semen produced by a man who 24 is not the husband of the first-mentioned woman; or 25 (b) for the purpose of fertilising an ovum inside her body, 26 an ovum produced by another woman together with 27 semen produced by a man who is not the husband of the 28 first-mentioned woman.'. 29 111 Insertion of new pt 5, div 3 30 After section 35-- 31 Page 74

 


 

Surrogacy Bill 2009 Chapter 6 Amendments Part 10 Amendment of Status of Children Act 1978 [s 111] insert-- 1 `Division 3 Transitional provisions for 2 Surrogacy Act 2009 3 `36 Parentage presumption of children conceived by 4 particular fertilisation procedures occurring before 5 commencement 6 `(1) This section applies if, before the commencement of this 7 section-- 8 (a) a woman underwent a fertilisation procedure mentioned 9 in section 18, 19, 22 or 23; and 10 (b) a child was born as a result of the fertilisation procedure. 11 `(2) The presumptions arising under sections 18, 19, 22 and 23 12 apply. 13 `(3) However, the presumptions do not apply so as to affect the 14 vesting in possession or in interest of any property before the 15 commencement of this section. 16 `37 Parentage presumption of children conceived by 17 particular fertilisation procedures occurring before 18 commencement for women with female de facto 19 partner 20 `(1) This section applies if, before the commencement of the 21 relevant provision-- 22 (a) a woman had a female de facto partner and underwent a 23 fertilisation procedure mentioned in sections 19C to 24 19E; and 25 (b) a child was born as a result of the fertilisation 26 procedure; and 27 (c) the de facto partner consented to the fertilisation 28 procedure. 29 Page 75

 


 

Surrogacy Bill 2009 Chapter 7 Amendments of Acts Part 10 Amendment of Status of Children Act 1978 [s 112] `(2) Part 3, division 2, subdivision 2A applies as if the relevant 1 provision had commenced immediately before the woman 2 underwent the fertilisation procedure. 3 `(3) However, the presumptions arising under sections 19C, 19D 4 and 19E do not apply so as to affect the vesting in possession 5 or in interest of any property before the commencement of the 6 relevant provision. 7 `(4) In this section-- 8 relevant provision means the Surrogacy Act 2009, section 9 107.'. 10 Chapter 7 Amendments of Acts 11 112 Acts amended 12 (1) Schedule 1 amends the Acts it mentions. 13 (2) However, subsection (1) does not apply in relation to a 14 particular Act if another provision of this Act states that the 15 schedule amends the particular Act. 16 Page 76

 


 

Surrogacy Bill 2009 Schedule 1 Schedule 1 Minor amendments of Acts 1 section 112 2 Births, Deaths and Marriages Registration Act 2003 3 1 Section 10(2)(b) and (4), `section 18C'-- 4 omit, insert-- 5 `section 26'. 6 2 Section 48A(3)(a)(vii), after `;'-- 7 insert-- 8 `and'. 9 3 Section 50(2)(b), `if the person'-- 10 omit. 11 Criminal Code 12 1 Section 1-- 13 insert-- 14 `Evidence Act section 93A device statement, for chapter 62, 15 chapter division 3, see section 590AD. 16 view, for chapter 62, chapter division 3, see section 590AD.'. 17 Page 77

 


 

Surrogacy Bill 2009 Schedule 1 2 Section 15, `Land and Marine Defence Force'-- 1 omit, insert-- 2 `Australian Defence Force'. 3 3 Sections 54A(1)(a) to (c), 213(6)(a), 219(6)(a), after `;'-- 4 insert-- 5 `or'. 6 4 Section 98, definitions municipal election and polling 7 booth-- 8 omit. 9 5 Section 228E(5)(a), `R 18+ or X'-- 10 omit, insert-- 11 `R 18+'. 12 6 Sections 568(10)(a) and (b), 694(a) and (b), `or'-- 13 omit. 14 7 Section 694, `either'-- 15 omit, insert-- 16 `any'. 17 8 Section 719(3), `section 642(2)'-- 18 omit, insert-- 19 `section 641(2)'. 20 Page 78

 


 

Surrogacy Bill 2009 Schedule 1 Guardianship and Administration Act 2000 1 1 Sections 5(e), 6(a) and (b), 7(d) and 9(2)(a), editor's note, 2 `decision making'-- 3 omit, insert-- 4 `decision-making'. 5 2 Section 9(2)(a), editor's note, `decision maker'-- 6 omit, insert-- 7 `decision-maker'. 8 3 Sections 8(1)(a), 9(2)(a) and (b)(iv) and (v), 10, 11(1), 14(3) 9 and (5), 56(4) definition know, 65(4), 66(3), 66A(1), 67(1), 10 68(2), 69(2), 72(1) and (3)(a), 79(1)(c), 80A definition 11 chapter 5A application, 92(1), 160(1), 177(1) and (4)(b), 12 182(4), 183(1), 201(1), 215(1), 232(1), 262D(2), `Editor's 13 note'-- 14 omit, insert-- 15 `Note'. 16 4 Schedule 2, sections 2(h), 3, 6, 7(a) and 18(c), `Editor's 17 note'-- 18 omit, insert-- 19 `Note'. 20 Status of Children Act 1978 21 1 Section 12(8), `subsection (6)'-- 22 omit, insert-- 23 `subsection (7)'. 24 Page 79

 


 

Surrogacy Bill 2009 Schedule 2 Schedule 2 Dictionary 1 section 3 2 appropriately qualified, for chapter 3, see section 19. 3 birth mother see section 8(1). 4 birth mother's spouse see section 8(2). 5 birth mother's surrogacy costs see section 11. 6 birth parent see section 8(3). 7 child, for chapter 3 (other than part 4), see section 19. 8 child, for chapter 3, part 4, see section 45. 9 commencement, for chapter 5, part 2, see section 62. 10 commercial surrogacy arrangement see section 10. 11 consent, for chapter 3, see section 19. 12 couple see section 9(2). 13 court see section 13. 14 discharge order see section 12(2). 15 eligible woman see section 14(2). 16 independent, for a counsellor, for chapter 3, see section 19. 17 intended parent see section 9. 18 interested person for chapter 3, part 4, see section 45. 19 lawyer means an Australian legal practitioner under the Legal 20 Profession Act 2007. 21 medical or social need for a surrogacy arrangement see 22 section 14(1). 23 parentage order see section 12(1). 24 pre-commencement birth mother, for chapter 5, part 2, see 25 section 62. 26 Page 80

 


 

Surrogacy Bill 2009 Schedule 2 pre-commencement intended parent, for chapter 5, part 2, 1 see section 62. 2 pre-commencement surrogacy arrangement, for chapter 5, 3 part 2, see section 62. 4 surrogacy arrangement see section 7. 5 State of Queensland 2009 Page 81

 


[Index] [Search] [Download] [Related Items] [Help]