After years of legal confusion, couples who use a surrogate mother in NSW will be able to get legal recognition of their status as parents in state courts.
NSW will finally go ahead with planned surrogacy laws after a meeting of state and territory attorneys-general approved national principles yesterday.
The proposed laws are expected to clarify the difference between commercial surrogacy (which will remain illegal) and reasonable payments that can be made to an altruistic surrogate mother for her expenses in having a child.
They will also allow state courts to grant a parentage order that recognise couples as the parents of children born by surrogates, provided the court believes it is in the child's best interests, the child is living with the parents and surrogacy was agreed before conception. It will also be necessary for all parties to have received legal advice and counselling and to have given informed consent to the arrangement.
In the past, parents of surrogate children have had to go to the family court seeking parenting orders that recognise their status. But they have battled federal laws that assume the surrogate mother is the child's true mother and her partner is the father, even when he has no relationship with the child.
They have also been hampered by the state adoption laws.
David Norman - who with his wife, Denise, is the father of Emily, born to a surrogate mother - told an upper house inquiry in NSW that they would have to wait until she is five to adopt her and give her their name.
The states have been moved to act by the story of the Federal minister Stephen Conroy and his wife, Paula Benson, who had to leave Victoria, where surrogacy was essentially illegal, to enter into an agreement with a friend in NSW, later returning to Victoria with their daughter, Isabella, in 2006 and adopting her at a cost of $50,000.
Victoria has since changed its laws.
It was not clear last night whether other states and territories would amend their laws, but the NSW Attorney-General, John Hatzistergos, said they would be taken into account in NSW.