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Queensland
Family (Surrogacy) Bill 2009
Queensland
Family (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 and guiding principles . . . . . . . . . . . . . . . . . . . . . . . 9
6 Act applies despite Anti-Discrimination Act 1991 . . . . . . . . . . . . . 10
Part 3 Core concepts
7 Meaning of surrogacy arrangement and eligible surrogacy
arrangement .................................... 10
8 Meaning of birth mother, birth mother's spouse and birth parents 12
9 Meaning of intended parents and eligible couple . . . . . . . . . . . . . 12
10 Meaning of commercial surrogacy arrangement . . . . . . . . . . . . . 13
11 Meaning of birth mother's surrogacy costs. . . . . . . . . . . . . . . . . . 13
12 Meaning of parentage order and discharge order . . . . . . . . . . . . 15
13 Meaning of medical or social need for an eligible surrogacy
arrangement and eligible woman . . . . . . . . . . . . . . . . . . . . . . . . . 15
Chapter 2 Surrogacy arrangements other than eligible surrogacy
arrangements
14 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Chapter 3 Eligible surrogacy arrangements
15 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16 Rights of birth mother to manage pregnancy and birth . . . . . . . . 17
17 Presumptions under the Status of Children Act 1978 . . . . . . . . . 18
18 Registration of birth requirements . . . . . . . . . . . . . . . . . . . . . . . . 18
Family (Surrogacy) Bill 2009
Contents
Chapter 4 Parentage orders for child born as a result of eligible
surrogacy arrangement
Part 1 Introduction
19 Definitions for chapter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Part 2 Making a parentage order
20 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
21 Application for a parentage order . . . . . . . . . . . . . . . . . . . . . . . . . 20
22 Making a parentage order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23 Dispensing with a requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
24 Additional requirement if multiple births . . . . . . . . . . . . . . . . . . . . 23
25 Documents and information to be produced to court . . . . . . . . . . 23
26 Intended parents' affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
27 Birth mother's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
28 Birth mother's spouse's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . 26
29 Other birth parent's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
30 Lawyer's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
31 Initial counsellor's affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
32 Surrogacy guidance report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
33 Court may require attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
34 Form of parentage order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
35 Child's name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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
Page 2
Family (Surrogacy) Bill 2009
Contents
Part 5 Appeals
49 Appellants and appellable decisions . . . . . . . . . . . . . . . . . . . . . . 38
50 Appeal by rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Part 6 Privacy
51 Hearing not to be in public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
52 Access to court records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
53 Publishing identifying material . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Chapter 5 Offences
54 Territorial application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
55 Advertisements and other published matters . . . . . . . . . . . . . . . . 42
56 Surrogacy arrangements other than eligible surrogacy
arrangements prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
57 Commercial surrogacy arrangements prohibited . . . . . . . . . . . . . 42
58 Giving or receiving consideration . . . . . . . . . . . . . . . . . . . . . . . . . 42
59 Providing technical, professional or medical services for a
commercial surrogacy arrangement . . . . . . . . . . . . . . . . . . . . . . . 43
Chapter 6 Repeal and transitional provisions
Part 1 Repeal
60 Repeal of Surrogate Parenthood Act 1988. . . . . . . . . . . . . . . . . . 44
Part 2 Transitional provisions for Family (Surrogacy) Act 2009
61 Definitions for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
62 Application for parentage order in relation to pre-
commencement eligible surrogacy arrangement . . . . . . . . . . . . . 45
Chapter 7 Amendments
Part 1 Amendment of this Act
63 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
64 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Part 2 Amendment of Adoption Act 2009
65 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
66 Amendment of s 76 (Eligibility for inclusion in register) . . . . . . . . 47
Part 3 Amendment of Births, Deaths and Marriages Registration
Act 2003
67 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
68 Amendment of s 3 (Objects). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
69 Amendment of s 13 (Application to change child's first name
within a year of birth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
70 Amendment of s 14 (Reregistering a birth or adoption) . . . . . . . . 48
Page 3
Family (Surrogacy) Bill 2009
Contents
71 Amendment of s 15 (Change of name by registration). . . . . . . . . 49
72 Amendment of s 17 (Application to register change of child's
name) ......................................... 49
73 Amendment of s 19 (Registration of change of name) . . . . . . . . . 49
74 Amendment of s 20 (Notation of change of name other than by
registration) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
75 Amendment of s 41 (Registering events other than adoptions in
register) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
76 Insertion of new ss 41D and 41E . . . . . . . . . . . . . . . . . . . . . . . . . 50
41D Registering change of parentage under parentage
order ................................. 51
41E Reregistering birth if discharge order . . . . . . . . . . . . . 51
77 Amendment of s 44 (Obtaining information from the registrar) . . 52
78 Insertion of new s 44A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
44A Addendum to birth certificate . . . . . . . . . . . . . . . . . . . 55
79 Insertion of new pt 9, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
63 Amendment of regulation by Family (Surrogacy) Act
2009 does not affect powers of Governor in Council . 56
80 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 56
Part 4 Amendment of Births, Deaths and Marriages Registration
Regulation 2003
81 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
82 Amendment of s 13 (Information and documents for registering
events in register--Act, s 41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Part 5 Amendment of the Criminal Code
83 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
84 Amendment of s 222 (Incest) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
85 Amendment of s 363 (Child-stealing) . . . . . . . . . . . . . . . . . . . . . . 58
Part 6 Amendment of Domicile Act 1981
86 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
87 Amendment of s 8 (Domicile of certain children) . . . . . . . . . . . . . 59
Part 7 Amendment of Evidence Act 1977
88 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
89 Amendment of s 21AC (Definitions for div 4A) . . . . . . . . . . . . . . . 61
Part 8 Amendment of Guardianship and Administration Act 2000
90 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
91 Amendment of sch 2 (Types of matters). . . . . . . . . . . . . . . . . . . . 62
Page 4
Family (Surrogacy) Bill 2009
Contents
Part 9 Amendment of Powers of Attorney Act 1998
92 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
93 Amendment of sch 2 (Types of matters). . . . . . . . . . . . . . . . . . . . 62
Schedule Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Page 5
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
particular surrogacy arrangements including commercial
surrogacy arrangements and 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
Family (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 Family (Surrogacy) Act 2009. 5
2 Commencement 6
This Act commences on 1 April 2010. 7
3 Dictionary 8
The dictionary in the schedule defines particular words used 9
in 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
Family (Surrogacy) Bill 2009
Chapter 1 Preliminary
Part 2 Application, objects and guiding principles
[s 5]
5 Main objects and guiding principles 1
(1) The main objects of this Act are-- 2
(a) to regulate particular matters in relation to surrogacy 3
arrangements, including by prohibiting surrogacy 4
arrangements except in particular circumstances; and 5
(b) to provide for the court-sanctioned transfer of parentage 6
of a child born as a result of a surrogacy arrangement in 7
those particular circumstances; and 8
(c) 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
(2) This Act is to be administered according to the principle that 17
the wellbeing and best interests of a child born as a result of a 18
surrogacy arrangement, both through childhood and for the 19
rest of his or her life, are paramount. 20
(3) Subject to subsection (2), this Act is to be administered 21
according to the following principles-- 22
(a) a child born as a result of a surrogacy arrangement 23
should be cared for in a way that-- 24
(i) ensures a safe, stable and nurturing family and 25
home life; and 26
(ii) promotes openness and honesty about the child's 27
birth parentage; and 28
(iii) promotes the development of the child's emotional, 29
mental, physical and social wellbeing; 30
(b) the same status, protection and support should be 31
available to a child born as a result of a surrogacy 32
arrangement regardless of-- 33
Page 9
Family (Surrogacy) Bill 2009
Chapter 1 Preliminary
Part 3 Core concepts
[s 6]
(i) how the child was conceived under the 1
arrangement; or 2
(ii) whether there is a genetic relationship between the 3
child and any of the parties to the arrangement; or 4
(iii) the relationship status of the persons who become 5
the child's parents as a result of a transfer of 6
parentage; 7
(c) the long-term health and wellbeing of parties to a 8
surrogacy arrangement and their families should be 9
promoted; 10
(d) the autonomy of consenting adults in their private lives 11
should be respected. 12
6 Act applies despite Anti-Discrimination Act 1991 13
(1) Despite the Anti-Discrimination Act 1991, a person may make 14
a decision or do another act that is necessary to comply with, 15
or is specifically authorised by, this Act. 16
(2) Without limiting subsection (1), a person may make a 17
decision or do another act under this Act to comply with the 18
main guiding principle under section 5(2). 19
Part 3 Core concepts 20
7 Meaning of surrogacy arrangement and eligible 21
surrogacy arrangement 22
(1) A surrogacy arrangement means an arrangement, agreement 23
or understanding between a woman and another person or 24
persons under which-- 25
(a) the woman agrees to become, or try to become, pregnant 26
with the intention that-- 27
Page 10
Family (Surrogacy) Bill 2009
Chapter 1 Preliminary
Part 3 Core concepts
[s 7]
(i) a child born as a result of the pregnancy is to be 1
treated as the child, not of the woman, but of the 2
other person or persons; and 3
(ii) the woman will relinquish to the other person or 4
persons custody and guardianship of a child born 5
as a result of the pregnancy; and 6
(b) the other person or persons agree to become 7
permanently responsible for the custody and 8
guardianship of a child born as a result of the pregnancy. 9
Note-- 10
Surrogacy arrangements other than eligible surrogacy arrangements are 11
prohibited--see section 56. 12
(2) An eligible surrogacy arrangement means a surrogacy 13
arrangement where the intended parents are an eligible 14
couple. 15
Note-- 16
There are many additional requirements which must be satisfied to 17
obtain a parentage order under chapter 4 in relation to a child born as the 18
result of an eligible surrogacy arrangement. For example, independent 19
legal advice must be obtained before entering into the eligible surrogacy 20
arrangement--see section 22(2)(e)(i). 21
(3) There may be other parties to a surrogacy arrangement, for 22
example, the woman's spouse. 23
Notes-- 24
1 The woman's spouse (if any) must be a party to the eligible 25
surrogacy arrangement if transfer of parentage of the child born as a 26
result of the arrangement is desired--see section 22(2)(e)(v). 27
2 Spouse is defined in the Acts Interpretation Act 1954, section 36 to 28
include a de facto partner. 29
(4) Also, there may be other matters dealt with in a surrogacy 30
arrangement. 31
Page 11
Family (Surrogacy) Bill 2009
Chapter 1 Preliminary
Part 3 Core concepts
[s 8]
8 Meaning of birth mother, birth mother's spouse and birth 1
parents 2
(1) The birth mother is the woman who agrees to the matters 3
mentioned in section 7(1)(a) under an eligible surrogacy 4
arrangement. 5
(2) The birth mother's spouse means the birth mother's spouse at 6
the time when the birth mother entered into the eligible 7
surrogacy arrangement. 8
(3) A birth parent, of a child, means a person (other than an 9
intended parent) who is recognised at law as being a parent of 10
the child at the time when the child is born. 11
9 Meaning of intended parents and eligible couple 12
(1) The intended parents are the eligible couple who agree to the 13
matter mentioned in section 7(1)(b). 14
(2) An eligible couple, for an eligible surrogacy arrangement, 15
is-- 16
(a) a married couple; or 17
(b) a de facto couple comprising a male de facto partner and 18
a female de facto partner who, when the eligible 19
surrogacy arrangement was made, have lived together in 20
a de facto relationship for at least 2 years. 21
(3) Also, if, at the time the eligible surrogacy arrangement was 22
made, the intended parents were an eligible couple and, at a 23
later relevant time, are no longer an eligible couple, a 24
reference to the intended parents includes-- 25
(a) if 1 of the intended parents has died, a reference to the 26
surviving intended parent; or 27
(b) otherwise, a reference to the person formerly part of the 28
eligible couple who makes an application under chapter 29
4. 30
Page 12
Family (Surrogacy) Bill 2009
Chapter 1 Preliminary
Part 3 Core concepts
[s 10]
10 Meaning of commercial surrogacy arrangement 1
An eligible surrogacy arrangement is a commercial surrogacy 2
arrangement if a person receives a payment, reward or other 3
material benefit or advantage (other than the reimbursement 4
of the birth mother's surrogacy costs) for the person or 5
another person-- 6
(a) agreeing to enter into or entering into the eligible 7
surrogacy arrangement; or 8
(b) permanently relinquishing to the intended parents the 9
custody and guardianship of a child born as a result of 10
the eligible surrogacy arrangement; or 11
(c) consenting to the making of a parentage order for a child 12
born as a result of the eligible surrogacy arrangement. 13
11 Meaning of birth mother's surrogacy costs 14
(1) A birth mother's surrogacy costs are the birth mother's 15
reasonable costs associated with any of the following 16
matters-- 17
(a) becoming or trying to become pregnant; 18
(b) a pregnancy or a birth; 19
(c) the birth mother and the birth mother's spouse (if any) 20
being a party to an eligible surrogacy arrangement or 21
proceedings in relation to a parentage order. 22
(2) Without limiting subsection (1), the following amounts are a 23
birth mother's surrogacy costs-- 24
(a) a reasonable medical cost for the birth mother 25
associated with any of the matters mentioned in 26
subsection (1); 27
Example-- 28
This may be incurred before conception if the birth mother 29
consults a medical practitioner to find out if she is capable of 30
carrying a pregnancy before undergoing a fertilisation 31
procedure. 32
Page 13
Family (Surrogacy) Bill 2009
Chapter 1 Preliminary
Part 3 Core concepts
[s 11]
(b) a reasonable cost, including a reasonable medical cost, 1
for a child born as a result of the eligible surrogacy 2
arrangement; 3
(c) a premium payable for health, disability or life 4
insurance that would not have been obtained by the birth 5
mother if the eligible surrogacy arrangement had not 6
been entered into; 7
(d) a reasonable cost of counselling associated with any of 8
the matters mentioned in subsection (1), including-- 9
(i) the cost of counselling obtained by the birth 10
mother or the birth mother's spouse (if any) before 11
or after entering into the eligible surrogacy 12
arrangement; or 13
(ii) the cost relating to the preparation of a surrogacy 14
guidance report under section 32; 15
(e) a reasonable legal cost for the birth mother and the birth 16
mother's spouse (if any) relating to the eligible 17
surrogacy arrangement and the transfer of parentage; 18
(f) the value of the birth mother's actual lost earnings 19
because of leave taken-- 20
(i) for a period of not more than 2 months during 21
which a birth happened or was expected to happen; 22
or 23
(ii) for any other period during the pregnancy where 24
the birth mother was unable to work on medical 25
grounds; 26
(g) another reasonable cost associated with the eligible 27
surrogacy arrangement or the making of the order 28
transferring parentage. 29
Examples of other reasonable costs for paragraph (g)-- 30
· travel and accommodation costs for a birth mother who lives 31
interstate and travels to Queensland to undertake a fertility 32
treatment, to consult with an obstetrician or to give birth 33
Page 14
Family (Surrogacy) Bill 2009
Chapter 1 Preliminary
Part 3 Core concepts
[s 12]
· travel and accommodation costs associated with a birth 1
mother's attendance at a court hearing about an application 2
for a parentage order if the birth mother does not live near 3
the court 4
(3) In this section-- 5
legal cost includes fees for obtaining legal advice and legal 6
representation, court fees, and registry fees associated with 7
registration of a birth and transfer of parentage. 8
medical cost means a medical cost to the extent that it is not 9
recoverable under Medicare or any health insurance or other 10
scheme. 11
12 Meaning of parentage order and discharge order 12
(1) A parentage order is an order made by the court under 13
chapter 4 for the transfer of the parentage of a child born as a 14
result of an eligible surrogacy arrangement. 15
(2) A discharge order is an order made by the court under chapter 16
4 discharging a parentage order. 17
13 Meaning of medical or social need for an eligible 18
surrogacy arrangement and eligible woman 19
(1) There is a medical or social need for an eligible surrogacy 20
arrangement if the female intended parent is an eligible 21
woman. 22
(2) An eligible woman is a woman who-- 23
(a) is unable to conceive; or 24
(b) if able to conceive-- 25
(i) is likely to be unable, on medical grounds, either to 26
carry a pregnancy or to give birth; or 27
(ii) either-- 28
(A) is unlikely to survive a pregnancy or birth; or 29
Page 15
Family (Surrogacy) Bill 2009
Chapter 2 Surrogacy arrangements other than eligible surrogacy arrangements
[s 14]
(B) is likely to have her health significantly 1
affected by a pregnancy or birth; or 2
(iii) is likely to conceive-- 3
(A) a child affected by a genetic condition or 4
disorder, the cause of which is attributable to 5
the woman; or 6
(B) a child who is unlikely to survive a 7
pregnancy or birth; or 8
(C) a child whose health is likely to be 9
significantly affected by a pregnancy or 10
birth. 11
Chapter 2 Surrogacy arrangements 12
other than eligible 13
surrogacy arrangements 14
14 Enforcement 15
(1) This section does not apply in relation to an eligible surrogacy 16
arrangement. 17
(2) A surrogacy arrangement is void. 18
Note-- 19
Surrogacy arrangements other than eligible surrogacy arrangements are 20
prohibited--see section 56. 21
(3) A proceeding may not be started or decided in a court of 22
Queensland-- 23
(a) for the enforcement of a surrogacy arrangement; or 24
(b) for the recovery of any amount or other thing paid or 25
given in connection with a surrogacy arrangement. 26
Page 16
Family (Surrogacy) Bill 2009
Chapter 3 Eligible surrogacy arrangements
[s 15]
(4) Subsection (3) applies regardless of where the surrogacy 1
arrangement was made or what law may be the proper law of 2
the surrogacy arrangement. 3
Chapter 3 Eligible surrogacy 4
arrangements 5
15 Enforcement 6
(1) An eligible surrogacy arrangement is not enforceable. 7
(2) However, an obligation under an eligible surrogacy 8
arrangement to pay or reimburse the birth mother's surrogacy 9
costs is enforceable unless-- 10
(a) a child is born as a result of a eligible surrogacy 11
arrangement; and 12
(b) the birth mother-- 13
(i) does not relinquish the custody and guardianship 14
of the child to the intended parents; or 15
(ii) on an application (if any) for a parentage order in 16
relation to the child--does not consent to the 17
making of the order. 18
16 Rights of birth mother to manage pregnancy and birth 19
(1) This section applies to an eligible surrogacy arrangement 20
despite anything that the parties to the arrangement may have 21
agreed, whether or not in writing. 22
(2) A birth mother has the same rights to manage her pregnancy 23
and birth as any other pregnant woman. 24
Page 17
Family (Surrogacy) Bill 2009
Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
Part 1 Introduction
[s 17]
17 Presumptions under the Status of Children Act 1978 1
To remove any doubt, it is declared that, unless and until a 2
parentage order is made under chapter 4 transferring the 3
parentage of a child born as a result of an eligible surrogacy 4
arrangement, the parentage presumptions under the Status of 5
Children Act 1978 apply to the child. 6
18 Registration of birth requirements 7
To remove any doubt, it is declared that the requirement under 8
the Births, Deaths and Marriages Registration Act 2003 to 9
register the birth of a child applies to the birth parents of a 10
child born as a result of an eligible surrogacy arrangement. 11
Chapter 4 Parentage orders for child 12
born as a result of eligible 13
surrogacy arrangement 14
Part 1 Introduction 15
19 Definitions for chapter 16
In this chapter-- 17
appropriately qualified, for a counsellor or medical 18
practitioner swearing an affidavit verifying a report prepared 19
by the counsellor or medical practitioner, includes having the 20
qualifications, experience, skills or knowledge appropriate to 21
prepare the report. 22
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Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
Part 2 Making a parentage order
[s 20]
Examples of an appropriately qualified counsellor-- 1
· a person who is a member of the Australia and New Zealand 2
Infertility Counsellors Association 3
· a psychiatrist 4
· a psychologist 5
· a social worker 6
child, other than in part 4, means a child born as a result of an 7
eligible surrogacy arrangement. 8
consent means consent freely and voluntarily given by a 9
person with capacity, within the meaning of the Guardianship 10
and Administration Act 2000, to give the consent. 11
independent, for a counsellor in relation to an application for 12
a parentage order in relation to a child, means the 13
counsellor-- 14
(a) did not give counselling about the eligible surrogacy 15
arrangement to the birth mother, the birth mother's 16
spouse (if any) or the intended parents; and 17
(b) is not, and has not been, directly connected with a 18
medical practitioner who carried out a procedure that 19
resulted in the birth of the child. 20
Example-- 21
A counsellor is directly connected with a medical practitioner if 22
the counsellor is engaged to give fertility counselling at the 23
fertility clinic where the medical practitioner carried out a 24
procedure that resulted in the birth of the child. 25
Part 2 Making a parentage order 26
20 Purpose 27
This part facilitates the transfer, in particular circumstances, 28
of the parentage of a child born as a result of an eligible 29
surrogacy arrangement that satisfies particular requirements. 30
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[s 21]
21 Application for a parentage order 1
(1) Intended parents may apply to the court for a parentage order 2
in relation to a child. 3
(2) The application may be made-- 4
(a) not less than 28 days and not more than 6 months after 5
the child's birth; or 6
(b) at a later time with the court's leave. 7
(3) The court may grant leave under subsection (2)(b) only if it 8
considers the making of the late application is justified 9
because of exceptional circumstances and that it is for the 10
wellbeing, and in the best interests, of the child to grant the 11
leave. 12
(4) To the extent practicable, the documents mentioned in section 13
25 must be filed with the application. 14
22 Making a parentage order 15
(1) On an application under this part, the court may make a 16
parentage order for the transfer of parentage of a child to the 17
intended parents. 18
(2) The court may make the parentage order only if it is satisfied 19
of all of the following matters-- 20
(a) the proposed order will be for the wellbeing, and in the 21
best interests, of the child; 22
(b) the child-- 23
(i) has resided with the intended parents for at least 28 24
consecutive days before the application was made; 25
and 26
(ii) was residing with the intended parents when the 27
application was made; and 28
(iii) is residing with the intended parents at the time of 29
the hearing; 30
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[s 22]
(c) the intended parents were an eligible couple when the 1
surrogacy arrangement was made; 2
(d) there is evidence of a medical or social need for the 3
surrogacy arrangement; 4
(e) the surrogacy arrangement-- 5
(i) was made after-- 6
(A) the birth mother and the birth mother's 7
spouse (if any), jointly or separately; and 8
(B) the intended parents, jointly or separately; 9
obtained independent legal advice about the 10
eligible surrogacy arrangement and its 11
implications; and 12
(ii) was made after the birth mother, the birth mother's 13
spouse (if any) and the intended parents each 14
obtained counselling from an appropriately 15
qualified counsellor about the eligible surrogacy 16
arrangement and its social and psychological 17
implications; and 18
(iii) was made with the consent of the birth mother, the 19
birth mother's spouse (if any) and the intended 20
parents; and 21
(iv) was made before the child was conceived; and 22
(v) is in writing and signed by the birth mother, the 23
birth mother's spouse (if any) and the intended 24
parents; and 25
(vi) is not a commercial surrogacy arrangement; 26
(f) the birth mother and the birth mother's spouse (if any) 27
were at least 25 years when the eligible surrogacy 28
arrangement was made; 29
(g) each intended parent-- 30
(i) was at least 25 years when the eligible surrogacy 31
arrangement was made; and 32
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[s 23]
(ii) is resident in Queensland; 1
(h) the birth mother, the birth mother's spouse (if any), 2
another birth parent (if any) and the intended parents 3
consent to the making of the parentage order at the time 4
of the hearing; 5
(i) a surrogacy guidance report under section 32 supports 6
the making of the proposed order. 7
23 Dispensing with a requirement 8
(1) The court may not dispense with a requirement mentioned in 9
section 22(2)(a) or section 22(2)(e)(iii), (iv) or (vi). 10
(2) The court may dispense with a requirement mentioned in 11
section 22(2) (other than a requirement mentioned in section 12
22(2)(a) or section 22(2)(e)(iii), (iv) or (vi)) only if the court is 13
satisfied-- 14
(a) there are exceptional circumstances for giving the 15
dispensation; and 16
Example of exceptional circumstances-- 17
A requirement under section 22(2)(g)(ii) may be dispensed with 18
if an intended parent is temporarily residing outside Queensland 19
because of work commitments but is still in a spousal 20
relationship with the other intended parent who is resident in 21
Queensland. 22
(b) the dispensation will be for the wellbeing, and in the 23
best interests, of the child. 24
(3) However, to dispense with the requirement under section 25
22(2)(h) for a person to consent to the making of the 26
parentage order, the exceptional circumstances for giving the 27
dispensation must be either that-- 28
(a) the person has died or is not a person with capacity to 29
give the consent; or 30
(b) an applicant can not locate the person after making all 31
reasonable enquiries. 32
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Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
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[s 24]
24 Additional requirement if multiple births 1
(1) This section applies if a child has a living birth sibling. 2
(2) Despite any other provision in this Act, the court may make a 3
parentage order about the child only if it also makes a 4
parentage order about each living birth sibling of the child in 5
favour of the intended parents of the child. 6
(3) In this section-- 7
birth sibling, of a child, means a brother or sister of the child 8
who is born as a result of the same pregnancy as the child. 9
25 Documents and information to be produced to court 10
(1) For an application for a parentage order, the following 11
documents must be produced to the court-- 12
(a) a copy of the child's birth certificate; 13
(b) a copy of the eligible surrogacy arrangement; 14
(c) an affidavit under section 26 sworn by the intended 15
parents; 16
(d) an affidavit under section 27 sworn by the birth mother; 17
(e) an affidavit under section 28 sworn by the birth mother's 18
spouse (if any); 19
(f) an affidavit under section 29 sworn by another birth 20
parent (if any); 21
(g) for each intended parent, the birth mother and the birth 22
mother's spouse (if any)--an affidavit under section 30 23
sworn by the lawyer who gave legal advice to the person 24
before the eligible surrogacy arrangement was made; 25
(h) an affidavit under section 31 sworn by the appropriately 26
qualified counsellor who gave counselling to the birth 27
mother, the birth mother's spouse (if any) and the 28
intended parents before the eligible surrogacy 29
arrangement was made; 30
(i) an affidavit-- 31
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[s 26]
(i) sworn by the independent and appropriately 1
qualified counsellor who, for the purpose of the 2
application, interviewed the birth mother, the birth 3
mother's spouse (if any), another birth parent (if 4
any) and the intended parents; and 5
(ii) verifying a surrogacy guidance report under 6
section 32 prepared by the counsellor; 7
(j) an affidavit from an appropriately qualified medical 8
practitioner verifying a report prepared by the medical 9
practitioner as to why the female intended parent is an 10
eligible woman. 11
(2) Despite subsection (1)(d), (e) and (f), a single affidavit 12
satisfying the requirements mentioned in sections 27 to 29 13
may be sworn by the birth mother, the birth mother's spouse 14
(if any) and another birth parent (if any). 15
(3) Despite subsection (1)(g), a single affidavit satisfying the 16
requirements mentioned in section 30 may be sworn by the 17
following-- 18
(a) a lawyer who gave legal advice to the birth mother and 19
the birth mother's spouse jointly; 20
(b) a lawyer who gave legal advice to the intended parents 21
jointly. 22
(4) Despite subsection (1)(h), if the same counsellor did not give 23
counselling to the birth mother, the birth mother's spouse (if 24
any) and the intended parents, affidavits under section 31 may 25
be sworn by more than 1 counsellor. 26
26 Intended parents' affidavit 27
The affidavit sworn by the intended parents must address the 28
matters mentioned in section 22(2) (to the extent they are not 29
matters regarding the birth mother, the birth mother's spouse 30
(if any) or another birth parent (if any)), including by 31
stating-- 32
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Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
Part 2 Making a parentage order
[s 27]
(a) the current and proposed care arrangements for the 1
child; and 2
(b) the understanding of the intended parents of the social, 3
psychological and legal implications of the eligible 4
surrogacy arrangement and the making of a parentage 5
order; and 6
(c) the understanding of the intended parents in relation to 7
openness and honesty about the child's birth parentage 8
being for the wellbeing, and in the best interests, of the 9
child; and 10
(d) the proposed name for the child; and 11
(e) each intended parent's date of birth and occupation (as 12
at the date of the child's birth). 13
27 Birth mother's affidavit 14
The affidavit sworn by the birth mother must address the 15
matters mentioned in section 22(2)(a), (e), (f) and (h) (to the 16
extent they are matters regarding the birth mother), and 17
22(2)(e)(iv) and (vi), including by stating-- 18
(a) the understanding of the birth mother of the social, 19
psychological and legal implications of the eligible 20
surrogacy arrangement and the making of a parentage 21
order; and 22
(b) the understanding of the birth mother in relation to 23
openness and honesty about the child's birth parentage 24
being for the wellbeing, and in the best interests, of the 25
child; and 26
(c) that the birth mother did not receive any payment, 27
reward or other material benefit or advantage, other than 28
the birth mother's surrogacy costs, for a matter 29
mentioned in section 10(a), (b), or (c); and 30
(d) the birth mother's date of birth. 31
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Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
Part 2 Making a parentage order
[s 28]
28 Birth mother's spouse's affidavit 1
The affidavit, sworn by the birth mother's spouse must 2
address the matters mentioned in section 22(2)(a), (e), (f) and 3
(h) (to the extent they are matters regarding the birth mother's 4
spouse) and 22(2)(e)(iv) and (vi), including by stating-- 5
(a) the understanding of the birth mother's spouse of the 6
social, psychological and legal implications of the 7
eligible surrogacy arrangement and the making of a 8
parentage order; and 9
(b) the understanding of the birth mother's spouse in 10
relation to openness and honesty about the child's birth 11
parentage being for the wellbeing, and in the best 12
interests, of the child; and 13
(c) that the birth mother's spouse did not receive any 14
payment, reward or other material benefit or advantage 15
for a matter mentioned in section 10(a), (b), or (c); and 16
(d) the birth mother's spouse's date of birth. 17
29 Other birth parent's affidavit 18
The affidavit sworn by the other birth parent must address the 19
matters mentioned in section 22(2)(a) and (h) (to the extent it 20
is a matter regarding the other birth parent) and 22(2)(e)(vi), 21
including by stating-- 22
(a) the understanding of the other birth parent of the social, 23
psychological and legal implications of the eligible 24
surrogacy arrangement and the making of a parentage 25
order; and 26
(b) the understanding of the other birth parent in relation to 27
openness and honesty about the child's birth parentage 28
being for the wellbeing, and in the best interests, of the 29
child; and 30
(c) that the other birth parent did not receive any payment, 31
reward or other material benefit or advantage for a 32
matter mentioned in section 10(a), (b), or (c). 33
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Part 2 Making a parentage order
[s 30]
30 Lawyer's affidavit 1
The affidavit sworn by the lawyer who gave legal advice to a 2
person must address the matter mentioned in section 3
22(2)(e)(i), including by stating-- 4
(a) separate and independent legal advice was given to the 5
person before the eligible surrogacy arrangement was 6
made; and 7
(b) the legal advice included advice about the following 8
matters-- 9
(i) the unenforceable nature of the arrangement, 10
except as provided under section 15; 11
(ii) the person's legal requirements under the 12
arrangement and this Act; 13
(iii) the legal implications if the birth mother does not 14
relinquish the child, including whether child 15
support would be payable by the child's biological 16
father under the Child Support (Assessment) Act 17
1989 (Cwlth); 18
(iv) the legal implications if, after the birth of the child, 19
none of the birth mother, the birth mother's spouse 20
(if any), another birth parent (if any) and the 21
intended parents want to be permanently 22
responsible for the child's custody and 23
guardianship; 24
(v) the legal implications of the making of a parentage 25
order; 26
(vi) that this Act promotes openness and honesty about 27
the child's birth parentage; and 28
(c) the lawyer's belief that the person understood the legal 29
advice given. 30
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Family (Surrogacy) Bill 2009
Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
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[s 31]
31 Initial counsellor's affidavit 1
The affidavit sworn by the appropriately qualified counsellor 2
who gave counselling to the birth mother, the birth mother's 3
spouse (if any) and the intended parents (the relevant 4
persons) must verify a report prepared by the counsellor 5
addressing the matter mentioned in section 22(2)(e)(ii), 6
including by stating-- 7
(a) the reasons the counsellor is an appropriately qualified 8
counsellor; and 9
(b) that counselling about the eligible surrogacy 10
arrangement and its social and psychological 11
implications was given to the relevant persons before the 12
surrogacy arrangement was made. 13
32 Surrogacy guidance report 14
(1) A surrogacy guidance report must be prepared by an 15
independent and appropriately qualified counsellor and state 16
the following matters-- 17
(a) the reasons the counsellor is an independent and 18
appropriately qualified counsellor; 19
(b) that, for the application, the counsellor interviewed the 20
birth mother, the birth mother's spouse (if any), another 21
birth parent (if any) and the intended parents (all of 22
whom are relevant persons); 23
(c) the date or dates of the interviews; 24
(d) the counsellor's opinion formed as a result of the 25
interviews relevant to the application for a parentage 26
order including, for example, about the following 27
matters-- 28
(i) each relevant person's understanding of-- 29
(A) the social and psychological implications of 30
the making of a parentage order on the child 31
and relevant persons; 32
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[s 33]
(B) openness and honesty about the child's birth 1
parentage being for the wellbeing, and in the 2
best interests, of the child; 3
(ii) the care arrangements that the intended parents 4
have proposed for the child; 5
(iii) whether the making of a parentage order would be 6
for the wellbeing, and in the best interests, of the 7
child. 8
33 Court may require attendance 9
On an application for a parentage order, for the purpose of 10
deciding whether the proposed order will promote the child's 11
wellbeing and best interests, the court may require the 12
attendance before it of the birth mother, the birth mother's 13
spouse (if any), the other birth parent (if any), the intended 14
parents or another person who has sworn an affidavit for the 15
application to-- 16
(a) give evidence in relation to the application; or 17
(b) produce stated documents or things. 18
34 Form of parentage order 19
A parentage order must state the following details-- 20
(a) the date of the order; 21
(b) the first name and surname of the child-- 22
(i) before the order was made; and 23
(ii) on the making of the order; 24
(c) the date of birth of the child; 25
(d) the place of birth of the child; 26
(e) the first name and surname, address and occupation of 27
each of the intended parents; 28
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[s 35]
(f) the first name and surname and address of each of the 1
the child's birth parents; 2
(g) the terms of any ancillary orders. 3
35 Child's name 4
(1) On the making of a parentage order, the child's names are the 5
names the court approves for the child in the parentage order. 6
(2) In approving a name under this section, the court must have 7
regard to the child's wellbeing and best interests and must not 8
approve a name that is a prohibited name under the Births, 9
Deaths and Marriages Registration Act 2003. 10
(3) This section does not prevent a name of the child being 11
changed later under a law of the State or the Commonwealth. 12
36 Other orders 13
If the court makes a parentage order, it may also make any 14
other order it considers appropriate in the interests of justice 15
or to ensure the child's wellbeing and best interests. 16
37 Other order if deceased intended parent 17
(1) This section applies if 1 of the intended parents under an 18
eligible surrogacy arrangement dies before a parentage order 19
is made. 20
(2) Without limiting section 36, if the court makes a parentage 21
order transferring parentage of the child to the surviving 22
intended parent, the court may also make an order declaring 23
that the deceased intended parent is taken to have been a 24
parent of the child. 25
38 Notice if child in need of protection 26
If, on an application under this chapter in relation to a child, 27
the court considers the child is a child in need of protection 28
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Family (Surrogacy) Bill 2009
Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
Part 3 Effect of a parentage order
[s 39]
within the meaning of the Child Protection Act 1999, the court 1
may notify the chief executive under that Act. 2
Part 3 Effect of a parentage order 3
39 Effect on relationships 4
(1) This section applies if the intended parents apply to the court 5
for a parentage order in relation to a child and the court makes 6
the order. 7
(2) On the making of the parentage order-- 8
(a) the child becomes a child of the intended parents and the 9
intended parents become parents of the child; and 10
(b) the child stops being a child of a birth parent and a birth 11
parent stops being a parent of the child. 12
(3) Other relationships are determined in accordance with 13
subsection (2). 14
(4) However, for the purpose of applying a law relating to a 15
sexual offence where a familial relationship is relevant, the 16
child is taken to have both the familial relationships that 17
existed before the making of the parentage order as well as the 18
familial relationships that result from the making of the 19
parentage order. 20
40 Effect for property 21
(1) Section 39(2) and (3) has effect in relation to-- 22
(a) dispositions of property whether by will or otherwise; 23
and 24
(b) devolutions of property in relation to which a person 25
dies intestate. 26
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Part 3 Effect of a parentage order
[s 41]
(2) However, section 39 does not affect the operation of a will or 1
other instrument that distinguishes between children who 2
were born as a result of an eligible surrogacy arrangement 3
(surrogacy arrangement children) and children other than 4
surrogacy arrangement children. 5
41 Public trustee to make inquiries if bequest to unlocatable 6
child 7
(1) This section applies if-- 8
(a) under a will made after the commencement of this 9
section, the testator makes a disposition of property to a 10
person who is described-- 11
(i) as being a child of the testator or of another person; 12
and 13
(ii) as having had his or her parentage transferred to 14
another person or persons as a result of a parentage 15
order; and 16
(b) the personal representative of the testator is unable to 17
find out the name and address of the child. 18
(2) The personal representative must give the public trustee a 19
copy of the will and a notice stating that the personal 20
representative is unable to find out the name and address of 21
the child. 22
(3) On receipt of the copy and notice, the public trustee must take 23
steps to find out the name and address of the child and, if the 24
child has died, the date of the death by asking for information 25
from the registrar of the court and the registrar under the 26
Births, Deaths and Marriages Registration Act 2003. 27
(4) Despite any other Act or law, if the registrar of the court 28
receives a request from the public trustee under subsection 29
(3), the registrar must provide the public trustee with the name 30
and address of the child, on the making of the parentage order, 31
held in the court's records. 32
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Part 3 Effect of a parentage order
[s 42]
(5) The Births, Deaths and Marriages Registration Act 2003, 1
section 44 does not apply to a request for information made 2
under subsection (3) to the registrar under that Act. 3
(6) If, after taking the steps mentioned in subsection (3)-- 4
(a) the public trustee finds out the name, address or date of 5
death of the child, the public trustee must give a notice 6
to the personal representative stating-- 7
(i) that the name or address has been found out; or 8
(ii) that it has been found out that the child has died; 9
and 10
(b) to the extent the public trustee is unable to find out the 11
name and address of the child or whether the child has 12
died, the public trustee must give a notice to the 13
personal representative stating what details the public 14
trustee has been unable to find out. 15
42 Public trustee is trustee if bequest to unlocatable child 16
(1) This section applies if-- 17
(a) under a will made after the commencement of this 18
section, the testator makes a disposition of property to a 19
person who is described-- 20
(i) as being a child of the testator or of another person; 21
and 22
(ii) as having had his or her parentage transferred to 23
another person or persons as a result of a parentage 24
order; and 25
(b) the personal representative of the testator is given a 26
notice by the public trustee under section 41(6). 27
(2) The public trustee is a trustee for the child on the trusts stated 28
in, or arising under, the will. 29
(3) If the personal representative transfers property to the public 30
trustee as trustee for the child, the personal representative is 31
taken to have transferred the property to the child. 32
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Part 3 Effect of a parentage order
[s 43]
(4) Subsections (2) and (3) do not apply if the child died before 1
the testator or, for another reason, is not entitled to an interest 2
under the will. 3
(5) If the public trustee gives the personal representative a notice 4
that the child has disclaimed property to which the child was 5
entitled under the will, the notice is, for the purpose of 6
administering the estate, sufficient evidence that the child has 7
disclaimed the property. 8
43 Public trustee's fees for involvement 9
(1) The public trustee may charge fees for taking steps under 10
section 41(3) or (6) or for acting as trustee under section 42. 11
(2) The personal representative must pay to the public trustee out 12
of the testator's estate any fees charged by the public trustee 13
under subsection (1) and any fees or costs incurred by the 14
public trustee in taking steps under section 41(3) or (6) or in 15
acting as trustee under section 42. 16
44 Transfer or distribution of property by trustee 17
(1) Subject to this section, a trustee may transfer or distribute 18
property to persons who appear entitled to it without finding 19
out whether or not a parentage order has been made because 20
of which a person is or is not entitled to an interest in the 21
property. 22
(2) A trustee who transfers or distributes property under 23
subsection (1) is not liable to a person claiming directly or 24
indirectly because of a parentage order unless the trustee has 25
written or other notice of the claim before the transfer or 26
distribution. 27
(3) This section does not affect a person's right to follow property 28
into the hands of a person, other than a purchaser for value, 29
who has received it. 30
(4) In this section-- 31
trustee includes a personal representative. 32
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Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
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 under a 4
parentage order. 5
interested person, for an application for a discharge order, 6
means-- 7
(a) if the child is 18 years--the child; and 8
(b) each of the child's birth parents and intended parents; 9
and 10
(c) the Attorney-General. 11
46 Application for a discharge order 12
(1) An interested person may apply to the court for a discharge 13
order discharging a parentage order in relation to a child on 14
the ground that-- 15
(a) the parentage order was obtained by fraud, duress or 16
other improper means; or 17
(b) a consent required for the making of the parentage order 18
was, in fact, not given or was given for payment, reward 19
or other material benefit or advantage (other than the 20
birth mother's surrogacy costs); or 21
(c) there is an exceptional reason why the parentage order 22
should be discharged. 23
(2) The applicant must state the ground on which the application 24
is made. 25
(3) As soon as practicable after filing the application, the 26
applicant must serve a copy of it on each interested person 27
(other than the Attorney General). 28
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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) 1 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
Family (Surrogacy) Bill 2009
Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
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
Family (Surrogacy) Bill 2009
Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
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 for 4
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 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
Family (Surrogacy) Bill 2009
Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
Part 6 Privacy
[s 52]
person who is not-- 1
(a) the child; or 2
(b) an applicant or 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 required by the court to give 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 the child is at least 18 years; 25
(b) a birth parent; 26
(c) an intended parent; 27
(d) the Attorney-General; 28
(e) the chief executive. 29
Page 39
Family (Surrogacy) Bill 2009
Chapter 4 Parentage orders for child born as a result of eligible surrogacy arrangement
Part 6 Privacy
[s 53]
(3) The court may give access to all or part of the record of 1
proceedings. 2
(4) Without limiting the reasons for which the court may refuse to 3
give a person access on an application under subsection (2), 4
the court may refuse to give access if-- 5
(a) the person has not produced to the registrar or another 6
appropriate officer of the court proof of the person's 7
identity; or 8
(b) the person has not complied with a requirement of the 9
court under any law or rule of practice relating to 10
inspection of and release of information generally from 11
its record of proceedings. 12
(5) In this section-- 13
record of proceedings includes-- 14
(a) the transcript of the proceedings; and 15
(b) the documents in the court file for the proceedings; and 16
(c) an appeal book in relation to the proceedings. 17
53 Publishing identifying material 18
(1) This section applies to material (identifying material) that 19
identifies, or is likely to lead to the identification of, a person 20
as-- 21
(a) a child born as result of an eligible surrogacy 22
arrangement or a child to whom a court proceeding 23
under this Act relates; or 24
(b) a party to an eligible surrogacy arrangement; or 25
(c) a party to a court proceeding under this Act; or 26
(d) a person whose consent to an eligible surrogacy 27
arrangement, or the making of a parentage order, is or 28
was required. 29
Page 40
Family (Surrogacy) Bill 2009
Chapter 5 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 parents. 9
Maximum penalty-- 10
(a) for an individual--100 penalty units or 2 years 11
imprisonment; or 12
(b) for a corporation--1000 penalty units. 13
(3) In this section-- 14
identified person, in relation to published material, means a 15
person identified by the material as a person mentioned in 16
subsection (1)(a) to (d). 17
Chapter 5 Offences 18
54 Territorial application 19
This part applies in relation to-- 20
(a) acts done in Queensland regardless of the whereabouts 21
of the offender at the time the act is done; or 22
(b) acts done outside Queensland if the offender is 23
ordinarily resident in Queensland at the time the act is 24
done. 25
Page 41
Family (Surrogacy) Bill 2009
Chapter 5 Offences
[s 55]
55 Advertisements and other published matters 1
A person must not publish an advertisement, statement, notice 2
or other material that-- 3
(a) is intended or likely to induce a person to agree to act as 4
a birth mother; or 5
(b) seeks or purports to seek a person willing to act as a 6
birth mother; or 7
(c) states or implies that a person is willing to agree to act 8
as a birth mother; or 9
(d) states or implies that a person is willing to enter into a 10
surrogacy arrangement. 11
Maximum penalty--100 penalty units or 3 years 12
imprisonment. 13
56 Surrogacy arrangements other than eligible surrogacy 14
arrangements prohibited 15
A person must not enter into or offer to enter into a surrogacy 16
arrangement that is not an eligible surrogacy arrangement. 17
Maximum penalty--100 penalty units or 3 years 18
imprisonment. 19
57 Commercial surrogacy arrangements prohibited 20
A person must not enter into or offer to enter into a 21
commercial surrogacy arrangement. 22
Maximum penalty--100 penalty units or 3 years 23
imprisonment. 24
58 Giving or receiving consideration 25
(1) A person must not give a payment, reward or other material 26
benefit or advantage (other than the reimbursement of the 27
birth mother's surrogacy costs) for another person-- 28
Page 42
Family (Surrogacy) Bill 2009
Chapter 5 Offences
[s 59]
(a) agreeing to enter into or entering into a surrogacy 1
arrangement; or 2
(b) giving the intended parents under a surrogacy 3
arrangement the permanent custody and guardianship of 4
a child born as a result of the surrogacy arrangement; or 5
(c) consenting to the making of a parentage order for a child 6
born as a result of an eligible surrogacy arrangement. 7
Maximum penalty--100 penalty units or 3 years 8
imprisonment. 9
(2) A person must not receive a payment, reward or other material 10
benefit or advantage (other than the reimbursement of the 11
birth mother's surrogacy costs) for the person or another 12
person-- 13
(a) agreeing to enter into or entering into a surrogacy 14
arrangement; or 15
(b) giving the intended parents under a surrogacy 16
arrangement the permanent custody and guardianship of 17
a child born as a result of the surrogacy arrangement; or 18
(c) consenting to the making of a parentage order for a child 19
born as a result of an eligible surrogacy arrangement. 20
Maximum penalty--100 penalty units or 3 years 21
imprisonment. 22
(3) In this section-- 23
intended parents means the person or persons who agree to 24
the matter mentioned in section 7(1)(b). 25
59 Providing technical, professional or medical services for 26
a commercial surrogacy arrangement 27
(1) A person commits an offence if-- 28
(a) the person intentionally provides a technical, 29
professional or medical service to another person; and 30
(b) the person knows the other person is, or intends to be, 31
party to a commercial surrogacy arrangement; and 32
Page 43
Family (Surrogacy) Bill 2009
Chapter 6 Repeal and transitional provisions
Part 1 Repeal
[s 60]
(c) the person provides the service with the intention of 1
assisting the other person to become pregnant for the 2
purpose of the arrangement. 3
Maximum penalty--100 penalty units or 3 years 4
imprisonment. 5
(2) However a person does not commit an offence under 6
subsection (1) if the person provides a technical, professional 7
or medical service to a woman after she has become pregnant. 8
Chapter 6 Repeal and transitional 9
provisions 10
Part 1 Repeal 11
60 Repeal of Surrogate Parenthood Act 1988 12
The Surrogate Parenthood Act 1988, No. 65 is repealed. 13
Part 2 Transitional provisions for 14
Family (Surrogacy) Act 2009 15
61 Definitions for part 16
In this part-- 17
commencement means the commencement of this section. 18
pre-commencement birth mother, for a pre-commencement 19
eligible surrogacy arrangement, means a person who, before 20
Page 44
Family (Surrogacy) Bill 2009
Chapter 6 Repeal and transitional provisions
Part 2 Transitional provisions for Family (Surrogacy) Act 2009
[s 62]
the commencement, corresponded to a birth mother under an 1
eligible surrogacy arrangement. 2
pre-commencement eligible surrogacy arrangement means 3
an arrangement entered into between a pre-commencement 4
birth mother and pre-commencement intended parents before 5
the commencement that corresponded to an eligible surrogacy 6
arrangement. 7
pre-commencement intended parents, for a 8
pre-commencement eligible surrogacy arrangement, means 9
persons who, before the commencement, corresponded to 10
intended parents under an eligible surrogacy arrangement. 11
62 Application for parentage order in relation to 12
pre-commencement eligible surrogacy arrangement 13
(1) This section applies if-- 14
(a) a pre-commencement birth mother and 15
pre-commencement intended parents were parties to a 16
pre-commencement eligible surrogacy arrangement; and 17
(b) the pre-commencement eligible surrogacy arrangement 18
was not a commercial surrogacy arrangement; and 19
(c) a child has been born as a result of the 20
pre-commencement eligible surrogacy arrangement; and 21
(d) the pre-commencement eligible surrogacy arrangement 22
was made before the child was conceived. 23
(2) Within 2 years after the commencement, the 24
pre-commencement intended parents may apply to the court 25
for a parentage order. 26
(3) Chapter 4 applies in relation to the application and any 27
parentage order made on the application is a parentage order 28
under chapter 4. 29
(4) In addition to the court's power under section 23, the court 30
may dispense with a requirement under chapter 4 (other than a 31
requirement mentioned in section 22(2)(e)(iii)) if the court 32
considers it is-- 33
Page 45
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 1 Amendment of this Act
[s 63]
(a) for the wellbeing, and in the best interests, of the child 1
born as a result of the pre-commencement eligible 2
surrogacy arrangement to dispense with the 3
requirement; or 4
(b) otherwise impractical for the pre-commencement 5
intended parents to comply with the requirement. 6
Example for paragraph (b)-- 7
Independent legal advice was not obtained before entering into 8
the pre-commencement eligible surrogacy arrangement. 9
(5) However, to dispense with the requirement under section 10
22(2)(h) for a person to consent to the making of the 11
parentage order, the circumstances for giving the dispensation 12
must be either that-- 13
(a) the person has died or is not a person with capacity to 14
give the consent; or 15
(b) an applicant can not locate the person after making all 16
reasonable enquiries. 17
Chapter 7 Amendments 18
Part 1 Amendment of this Act 19
63 Act amended 20
This part amends this Act. 21
64 Amendment of long title 22
(1) Long title, `arrangements, to prohibit'-- 23
omit, insert-- 24
Page 46
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 2 Amendment of Adoption Act 2009
[s 65]
`arrangements and to prohibit'. 1
(2) Long title, from `, to make particular'-- 2
omit. 3
Part 2 Amendment of Adoption Act 4
2009 5
65 Act amended 6
This part amends the Adoption Act 2009. 7
66 Amendment of s 76 (Eligibility for inclusion in register) 8
Section 76(1)-- 9
insert-- 10
`(ea) the person-- 11
(i) is not an intended parent under an eligible 12
surrogacy arrangement within the meaning of the 13
Family (Surrogacy) Act 2009; and 14
(ii) if the person has been an intended parent for an 15
eligible surrogacy arrangement within the meaning 16
of the Family (Surrogacy) Act 2009--the eligible 17
surrogacy arrangement ended not less than 6 18
months earlier; and'. 19
Page 47
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 67]
Part 3 Amendment of Births, Deaths 1
and Marriages Registration Act 2
2003 3
67 Act amended 4
This part amends the Births, Deaths and Marriages 5
Registration Act 2003. 6
68 Amendment of s 3 (Objects) 7
(1) Section 3(a)(ii)-- 8
renumber as section 3(a)(iii). 9
(2) Section 3(a)-- 10
insert-- 11
`(ii) changes of parentage under the Family (Surrogacy) 12
Act 2009; and'. 13
69 Amendment of s 13 (Application to change child's first 14
name within a year of birth) 15
Section 13(2), (3) and (4), `register of births or adopted 16
children register'-- 17
omit, insert-- 18
`relevant child register'. 19
70 Amendment of s 14 (Reregistering a birth or adoption) 20
(1) Section 14, `birth or adoption'-- 21
omit, insert-- 22
`relevant event'. 23
(2) Section 14(1)-- 24
insert-- 25
Page 48
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 71]
`(c) a person's parentage is changed by a parentage order.'. 1
(3) Section 14(5)(a), `register'-- 2
omit, insert-- 3
`relevant child register'. 4
(4) Section 14-- 5
insert-- 6
`(10) In this section-- 7
relevant event, for a person, means the most recent of the 8
following events for the person-- 9
(a) birth; 10
(b) adoption; 11
(c) change of parentage under a parentage order.'. 12
71 Amendment of s 15 (Change of name by registration) 13
Section 15-- 14
insert-- 15
`(5) Also, changes to a person's name under a parentage order or 16
discharge order are not dealt with under this part but under 17
sections 41D and 41E.'. 18
72 Amendment of s 17 (Application to register change of 19
child's name) 20
Section 17(3), `register of births or adopted children 21
register'-- 22
omit, insert-- 23
`relevant child register'. 24
73 Amendment of s 19 (Registration of change of name) 25
(1) Section 19(3), `the register,'-- 26
Page 49
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 74]
omit, insert-- 1
`the relevant child register,'. 2
(2) Section 19(3), `the register of births or adopted children 3
register'-- 4
omit, insert-- 5
`the relevant child register'. 6
74 Amendment of s 20 (Notation of change of name other 7
than by registration) 8
(1) Section 20(2), (3) and (5), `register of births or adopted 9
children register'-- 10
omit, insert-- 11
`relevant child register'. 12
(2) Section 20(4)(a), `register of births'-- 13
omit, insert-- 14
`relevant child register'. 15
75 Amendment of s 41 (Registering events other than 16
adoptions in register) 17
(1) Section 41, heading, after `adoptions'-- 18
insert-- 19
`or changes of parentage'. 20
(2) Section 41(1), after `adoption'-- 21
insert-- 22
`or a change of parentage under a parentage order or discharge 23
order'. 24
76 Insertion of new ss 41D and 41E 25
After section 41C-- 26
Page 50
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 76]
insert-- 1
`41D Registering change of parentage under parentage 2
order 3
`(1) This section applies if-- 4
(a) a parentage order is made in relation to a child whose 5
birth was registered in Queensland; and 6
(b) the registrar receives-- 7
(i) an application to register the order and the 8
application contains the information prescribed 9
under a regulation; and 10
(ii) an original copy of the parentage order. 11
`(2) The registrar must register the transfer of parentage by 12
incorporating into the parentage order register information 13
from the application to register the parentage order and the 14
original copy of the parentage order. 15
`(3) Also, the registrar must close the child's birth entry by-- 16
(a) noting, on the birth entry (the closed entry), a reference 17
to the parentage order entry; and 18
(b) noting, on the new parentage order entry, a reference to 19
the closed entry. 20
`41E Reregistering birth if discharge order 21
`(1) This section applies if-- 22
(a) the registrar has registered under section 41D the 23
transfer of a person's parentage; and 24
(b) a discharge order is made in relation to the parentage 25
order for the person; and 26
(c) the registrar receives-- 27
(i) an application to register the discharge order and 28
the application contains the information prescribed 29
under a regulation; and 30
Page 51
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 77]
(ii) an original copy of the discharge order. 1
`(2) The registrar must close the entry in the parentage order 2
register for the person by-- 3
(a) incorporating, in the entry, information from the 4
application to register the discharge order and the 5
original copy of the discharge order; and 6
(b) noting on the entry-- 7
(i) that the parentage order has been discharged; and 8
(ii) that the person's birth has been reregistered under 9
this section; and 10
(iii) a reference to the new entry made under subsection 11
(3). 12
`(3) The registrar must also reregister the person's birth by making 13
a new entry in the birth register that includes-- 14
(a) the person's names as declared in the discharge order; 15
and 16
(b) all the information that was in the entry that was closed 17
under section 41D (other than the person's names and 18
information about the parentage order or discharge 19
order); and 20
(c) a note that the new entry was made under this section; 21
and 22
(d) a reference to the entry closed under subsection (2). 23
`(4) The registrar may make any other notations in the birth 24
register or parentage order register that the registrar considers 25
necessary to ensure the registers include the correct 26
information for the person.'. 27
77 Amendment of s 44 (Obtaining information from the 28
registrar) 29
(1) Section 44(13)-- 30
renumber as section 44(19). 31
Page 52
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 77]
(2) Section 44-- 1
insert-- 2
`(13) The registrar may only give requested information relating to 3
an entry closed under section 41D or 41E to any of the 4
following persons-- 5
(a) the birth parents for the parentage order; 6
(b) the intended parents for the parentage order; 7
(c) if the child for the parentage order is at least 18 8
years--the child; 9
(d) a guardian appointed under the Guardianship and 10
Administration Act 2000 for any of the persons 11
mentioned in paragraphs (a) to (c); 12
(e) if an administrator has been appointed under the 13
Guardianship and Administration Act 2000, section 14, 14
for the child--the administrator; 15
(f) if a personal representative has been appointed for the 16
child--the personal representative; 17
(g) an officer of, or person acting for, a law enforcement 18
body; 19
(h) the Attorney-General. 20
`(14) When applying for information from a closed entry, a person 21
mentioned in subsection (13)(d), (e) or (f) must-- 22
(a) produce to the registrar-- 23
(i) a document verifying the person's identity; and 24
(ii) the person's instrument of appointment; and 25
(b) show that the information is required to discharge a 26
function under the person's appointment. 27
`(15) When applying for information from a closed entry, a person 28
mentioned in subsection (13)(g) must-- 29
(a) produce a document verifying the person's identity to 30
the registrar; and 31
Page 53
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 77]
Example of documentary proof of an officer's identity-- 1
an identity card issued by a law enforcement body, with a photo 2
of the officer, that states the officer's name, rank and registered 3
number 4
(b) show that the information is required to discharge-- 5
(i) a function of the law enforcement body; or 6
(ii) the person's duty as an officer of the law 7
enforcement body. 8
`(16) Despite subsection (13), the registrar may give requested 9
information relating to an entry closed under section 41D or 10
41E to a child who is less than 18 years if the birth parents and 11
the intended parents for the parentage order consent to the 12
child's application for the information. 13
`(17) For subsection (16), a person's consent is not required if-- 14
(a) the person has died; or 15
(b) the child can not locate the person after making all 16
reasonable enquiries. 17
`(18) If the registrar issues a certificate from an entry closed under 18
section 41D or 41E, the registrar must stamp the certificate or 19
mark it in another way to indicate that the certificate is not for 20
official use.'. 21
(3) Section 44(19)-- 22
insert-- 23
`birth parents means-- 24
(a) for a parentage order under the Family (Surrogacy) Act 25
2009-- birth parents under that Act; or 26
(b) for another parentage order--persons corresponding, 27
under the law of another Australian jurisdiction where 28
the order was made, to birth parents under the Family 29
(Surrogacy) Act 2009. 30
intended parents means-- 31
(a) for a parentage order under the Family (Surrogacy) Act 32
Page 54
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 78]
2009-- intended parents under that Act; or 1
(b) for another parentage order--persons corresponding, 2
under the law of another Australian jurisdiction where 3
the order was made, to intended parents under the 4
Family (Surrogacy) Act 2009. 5
law enforcement body means-- 6
(a) the Queensland Police Service or a police service of 7
another State; or 8
(b) the Australian Federal Police; or 9
(c) the Crime and Misconduct Commission; or 10
(d) the Australian Crime Commission.'. 11
78 Insertion of new s 44A 12
After section 44-- 13
insert-- 14
`44A Addendum to birth certificate 15
`(1) This section applies if-- 16
(a) a person (the applicant)-- 17
(i) applies to the registrar, in writing, for information 18
about an event that is, or may be, in a register kept 19
by the registrar; and 20
(ii) is at least 18 years at the time of making the 21
application; and 22
(b) the applicant's birth was registered in Queensland; and 23
(c) a parentage order in relation to the applicant was 24
registered in the parentage order register under section 25
41D (even if the entry in the parentage order register 26
was later closed under section 41E); and 27
(d) the registrar issues a certificate certifying particulars 28
contained in an entry about the birth of the applicant. 29
Page 55
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 3 Amendment of Births, Deaths and Marriages Registration Act 2003
[s 79]
`(2) When the registrar issues a certificate mentioned in subsection 1
(1)(d), the registrar must attach an addendum to the certificate 2
stating that further information is available about the entry. 3
`(3) To remove any doubt, it is declared that the registrar must not 4
issue the addendum to any person other than the applicant.'. 5
79 Insertion of new pt 9, div 5 6
Part 9-- 7
insert-- 8
`Division 5 Transitional provision for Family 9
(Surrogacy) Act 2009 10
`63 Amendment of regulation by Family (Surrogacy) Act 11
2009 does not affect powers of Governor in Council 12
The amendment of the Births, Deaths and Marriages 13
Registration Regulation 2003 by the Family (Surrogacy) Act 14
2009 does not affect the power of the Governor in Council to 15
further amend the regulation or to repeal it.'. 16
80 Amendment of sch 2 (Dictionary) 17
(1) Schedule 2-- 18
insert-- 19
`discharge order means-- 20
(a) a discharge order under the Family (Surrogacy) Act 21
2009; or 22
(b) an order of another Australian jurisdiction that 23
corresponds to an order mentioned in paragraph (a). 24
parentage order means-- 25
(a) a parentage order under the Family (Surrogacy) Act 26
2009; or 27
Page 56
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 4 Amendment of Births, Deaths and Marriages Registration Regulation 2003
[s 81]
(b) an order of another Australian jurisdiction that 1
corresponds to an order mentioned in paragraph (a). 2
relevant child register, for a person, means whichever of the 3
following registers has an open entry for the person-- 4
(a) the birth register; 5
(b) the adopted children register; 6
(c) the parentage order register.'. 7
(2) Schedule 2, definition registrable event, paragraph (c)-- 8
renumber as paragraph (d). 9
(3) Schedule 2, definition registrable event-- 10
insert-- 11
`(c) a change of parentage under a parentage order; or'. 12
Part 4 Amendment of Births, Deaths 13
and Marriages Registration 14
Regulation 2003 15
81 Regulation amended 16
This part amends the Births, Deaths and Marriages 17
Registration Regulation 2003. 18
82 Amendment of s 13 (Information and documents for 19
registering events in register--Act, s 41) 20
(1) Section 13, heading, `s 41'-- 21
omit, insert-- 22
`ss 41, 41D or 41E'. 23
(2) Section 13-- 24
Page 57
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 5 Amendment of the Criminal Code
[s 83]
insert-- 1
`(5) For sections 41D(1) and 41E(1) of the Act, the information in 2
schedule 1, part 1 is prescribed information for an application 3
to register a parentage order or discharge order.'. 4
Part 5 Amendment of the Criminal 5
Code 6
83 Act amended 7
This part amends the Criminal Code. 8
84 Amendment of s 222 (Incest) 9
Section 222-- 10
insert-- 11
`(7A) Also, if a parentage order is made under the Family 12
(Surrogacy) Act 2009, a reference in this section to an 13
offspring or other lineal descendant, or a sibling or a parent 14
includes a relationship of that type that-- 15
(a) existed before the making of the order; or 16
(b) came into existence as a result of the making of the 17
order regardless of whether the order has been 18
discharged.'. 19
85 Amendment of s 363 (Child-stealing) 20
(1) Section 363(2)-- 21
omit. 22
(2) Section 363(3)-- 23
renumber as section 363(2). 24
Page 58
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 6 Amendment of Domicile Act 1981
[s 86]
(3) Section 363-- 1
insert-- 2
`(3) In this section-- 3
corresponding parentage order means an order under a law 4
of another State that provides for a parentage order similar to 5
a parentage order under the Family (Surrogacy) Act 2009. 6
parent includes-- 7
(a) for a child who has been legally adopted in Queensland 8
or in another State--a person who has adopted the child; 9
or 10
(b) for a child whose parentage has been transferred by a
parentage order under the Family (Surrogacy) Act 2009 12
11
or a corresponding parentage order--a person who is a 13
parent of the child under the order; 14
but does not include a natural parent of the child.'. 15
Part 6 Amendment of Domicile Act 16
1981 17
86 Act amended 18
This part amends the Domicile Act 1981. 19
87 Amendment of s 8 (Domicile of certain children) 20
(1) Section 8(4) to (6)-- 21
renumber as section 8(6) to (8)-- 22
(2) Section 8-- 23
insert-- 24
Page 59
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 6 Amendment of Domicile Act 1981
[s 87]
`(4) Subsection (5) applies if a child's parentage has been 1
transferred by-- 2
(a) a parentage order under the Family (Surrogacy) Act 3
2009; or 4
(b) an order of another Australian jurisdiction (also a 5
parentage order) that corresponds to a parentage order 6
made under the Family (Surrogacy) Act 2009. 7
`(5) The child's domicile-- 8
(a) if, on the making of the parentage order, the child has 2 9
parents--is, from the time of the making of the order, 10
the domicile the child would have if the child were a 11
child born in wedlock to those parents; and 12
(b) if, on the making of the parentage order, the child has 1 13
parent only--is, from the time of the making of the 14
order, the domicile of that parent or, if that parent has 15
died, the domicile that parent had at the time of death.'. 16
(3) Section 8(7), as renumbered, `(2) or (3)'-- 17
omit, insert-- 18
`(2), (3) or (5)'. 19
(4) Section 8-- 20
insert-- 21
`(9) Subsection (10) applies if a parentage order for a child is 22
discharged by-- 23
(a) a discharge order under the Family (Surrogacy) Act 24
2009; or 25
(b) an order of another Australian jurisdiction (also a 26
discharge order) that corresponds to a discharge order 27
made under the Family (Surrogacy) Act 2009. 28
`(10) The child's domicile is-- 29
(a) the domicile stated in, or dealt with under, the discharge 30
order; or 31
Page 60
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 7 Amendment of Evidence Act 1977
[s 88]
(b) if there is no provision in the discharge order dealing 1
with the child's domicile--the domicile the child would 2
have if the transfer of parentage under the parentage 3
order had not taken place.'. 4
Part 7 Amendment of Evidence Act 5
1977 6
88 Act amended 7
This part amends the Evidence Act 1977. 8
89 Amendment of s 21AC (Definitions for div 4A) 9
(1) Section 21AC-- 10
insert-- 11
`parentage order relationship means a relationship arising 12
because of-- 13
(a) a parentage order under the Family (Surrogacy) Act 14
2009; or 15
(b) an order of another Australian jurisdiction that 16
corresponds to a parentage order made under that Act.'. 17
(2) Section 21AC, definition prescribed relationship, paragraph 18
(a), `or step relationship'-- 19
omit, insert-- 20
`, step or parentage order relationship'. 21
Page 61
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 8 Amendment of Guardianship and Administration Act 2000
[s 90]
Part 8 Amendment of Guardianship 1
and Administration Act 2000 2
90 Act amended 3
This part amends the Guardianship and Administration Act 4
2000. 5
91 Amendment of sch 2 (Types of matters) 6
Schedule 2, part 2, section 3-- 7
insert-- 8
`(f) entering into, or agreeing to enter into, an eligible 9
surrogacy arrangement under the Family (Surrogacy) 10
Act 2009; 11
(g) consenting to the making or discharge of a parentage 12
order under the Family (Surrogacy) Act 2009.'. 13
Part 9 Amendment of Powers of 14
Attorney Act 1998 15
92 Act amended 16
This part amends the Powers of Attorney Act 1998. 17
93 Amendment of sch 2 (Types of matters) 18
Schedule 2, part 2, section 3-- 19
insert-- 20
`(f) entering into, or agreeing to enter into, an eligible 21
surrogacy arrangement under the Family (Surrogacy) 22
Act 2009; 23
Page 62
Family (Surrogacy) Bill 2009
Chapter 7 Amendments
Part 9 Amendment of Powers of Attorney Act 1998
[s 93]
(g) consenting to the making or discharge of a parentage 1
order under the Family (Surrogacy) Act 2009.'. 2
Page 63
Family (Surrogacy) Bill 2009
Schedule
Schedule Dictionary 1
section 3 2
appropriately qualified, for chapter 4, 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 4 (other than part 4), see section 19. 8
child, for chapter 4, part 4, see section 45. 9
commencement, for chapter 6, part 2, see section 61. 10
commercial surrogacy arrangement see section 10. 11
consent, for chapter 4, see section 19. 12
court means the Supreme Court. 13
discharge order see section 12(2). 14
eligible couple see section 9. 15
eligible surrogacy arrangement see section 7. 16
eligible woman see section 13(2). 17
independent, for a counsellor, for chapter 4, see section 19. 18
intended parents, other than for section 58, see section 9. 19
interested person for chapter 4, part 4, see section 45. 20
lawyer means an Australian legal practitioner under the Legal 21
Profession Act 2007. 22
medical or social need for an eligible surrogacy 23
arrangement see section 13(1). 24
parentage order see section 12(1). 25
pre-commencement birth mother, for chapter 6, part 2, see 26
section 61. 27
Page 64
Family (Surrogacy) Bill 2009
Schedule
pre-commencement eligible surrogacy arrangement, for 1
chapter 6, part 2, see section 61. 2
pre-commencement intended parents, for chapter 6, part 2, 3
see section 61. 4
publish means publish to the public by television, radio, the 5
internet, newspaper, periodical, notice, circular or other form 6
of communication. 7
surrogacy arrangement see section 7. 8
9
Page 65
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