It is common knowledge that the ‘traditional family’ of a husband, wife and 2.5 children has rapidly become a thing of the past. All sorts of families exist nowadays, including those with a surrogate child or children. Read the case study below to understand what rights a surrogate child has in the context of estate law.
Child Surrogacy Rights — Case Study
Let’s imagine Jack was born in 1990, in the United Kingdom. His parents, Australian citizens and residents of Queensland, were very open with him that he was born as a result of a surrogacy arrangement. All legal processes were followed for Jack to become the full legal child of his mother and father and reside in Australia.
Let’s now imagine that Jack’s father has passed away. Jack views his father’s Will and for no clear reason, he has been excluded as a beneficiary from his father’s Will.
Is Jack an eligible applicant to make a claim against his father’s estate?
Background – Surrogacy
Before we answer that question, we need to first consider the legalities of the surrogacy arrangement.
Surrogacy has been legal in the United Kingdom since 1985. In Australia, each state and territory has enacted surrogacy laws – Queensland legalising altruistic surrogacy through the Surrogacy Act 2010 (Qld). Commercial surrogacy continues to be prohibited.
The Act defines a surrogacy arrangement in section 7(1) as follows:
A surrogacy arrangement means an arrangement, agreement or understanding between a woman and another person or persons under which:
- the woman agrees to become, or try to become, pregnant with the intention that
- a child born as a result of the pregnancy is to be treated as the child, not of the woman, but of the other person or persons; and
- the woman will relinquish to the other person or persons custody and guardianship of a child born as a result of the pregnancy; and
- the other person or persons agree to become permanently responsible for the custody and guardianship of a child born as a result of the pregnancy.
The woman, under this legislation, is the ‘birth mother’ and the other person or persons are the ‘intended parent(s)’.
When the surrogate child is born, their birth is registered with the birth mother and her spouse/partner listed as the child’s parents. This is regardless of who has provided the egg and sperm.
Subsequently, there is a legislative process the intended parents and birth parents must follow for a ‘parentage order’ of the child to be granted to the intended parents, who are then able to apply to Births, Deaths and Marriages to be registered on the child’s birth certificate.
Intended Parents = Surrogate Child’s Parents
Pursuant to section 39 Surrogacy Act 2010 (Qld), once a parentage order is made:
‘the child becomes a child of the intended parent, or intended parents…; and
the child stops being a child of a birth parent.’
Family Provision Claim
Pursuant to section 41 Succession Act 1981 (Qld), a deceased’s ‘child’, amongst others, may make a claim for further and better provision from the deceased’s estate if they have, for example, been left out of their parent(s) Will, or received only a token benefit under the Will.
Therefore, due to section 39 Surrogacy Act 2010 (Qld), the surrogate child is treated the same as an ordinary child under the Succession Act 1981 (Qld) and, accordingly, have the same rights as an ordinary child to make a claim for further and better provision from their parent(s) estate.
However, given surrogacy has only been legal in Queensland for 12 years, the earliest that a family provision claim could be initiated by a surrogate child, born in Queensland, would be 2028.
Returning to our case study, one factor to consider is any legal ramifications for Jack’s mother, his surviving parent, as a result of Jack’s family provision against his father’s estate, recalling that surrogacy was illegal in Queensland at the time of Jack’s birth to a surrogate in the United Kingdom.
Further, without proof, there may have been other cases of surrogacy within families that have occurred ‘under the radar’. Returning to our case study, let us imagine that Jack, born in 1990, was born by way of an informal, completely altruistic, surrogacy arrangement in Queensland. His aunt, knowing that Jack’s mother and father were having difficulty conceiving, offered to give birth to Jack for her sister and brother-in-law, using their genetic material. At birth, the sister gave Jack to her sister and brother-in-law, who then registered the child as their own.
Both scenarios just described result in legal questions which would need to be examined further. However, it is worth noting that there may be a legal risk to Jack’s mother and, indeed, the entire surrogacy arrangement. If Jack’s surrogacy was found not to be recognised under Australian law, then he would automatically lose his standing to make a claim against his ‘father’s’ estate.
If you have questions about any issue raised in this article or would like to talk about your standing to make a claim against an estate, O’Connor Ruddy & Garrett Solicitors are here to provide clarity and understanding and fight .