If you are unable to conceive, give birth or at risk of passing over an infectious disease, there are several actions that you can take to become a parent. These include adoption and surrogacy.
Read on to learn more about how adoption works in New South Wales and the steps you’ll need to take to become a parent.
What is adoption?
Adoption occurs when the biological parents of the child surrenders their parental rights and responsibilities to another person on a permanent basis.
Unlike other countries, Australia practises open adoption, meaning that the child is afforded the right to know that they have been adopted and to sustain a relationship with or knowledge of the family of origin and cultural heritage.
Adoption is legislated and regulated differently in each State and Territory, but in New South Wales, it is legislated by the Adoption Act 2000 (NSW). Some of the key objectives of this Act include:
- Maintaining the best interests of the child;
- Emphasising that adoption is a service for the child and not a right of the parents;
- Providing the child or young with access to their birth family and culture;
- Preserving the child’s name, identity, language and cultural and religious ties; and
- Encouraging openness between the birth and adoptive parents
Once the child is adopted, they:
- Have the same rights as any other child in the adoptive family;
- Can legally use the adoptive family’s surname;
- Will have a right to inheritance with the adoptive family;
- Are legally under the protection of the adoptive parents, who make decisions about their upbringing; and
- Are no longer the parental responsibility of the Minister of Communities and Justice (DCJ).
Eligibility for adoption
To adopt, the Applicant must:
- Be an Australian citizen;
- Be of good repute;
- Be a fit and proper person to fulfil the responsibilities of parenting;
- Be at least 21 years old; and
- (For prospective fathers) be at least eighteen (18) years older than the child to be adopted; and/or
- (For prospective mothers) be at least sixteen (16) years older than the child to be adopted
Same-sex couples are allowed to adopt in NSW, with legislative changes being made to adoption law with the passing of the Adoption Amendment (Same-Sex Couples) Bill 2010 (NSW).
Consenting to adoption
The views of children must be considered when they are adopted. In fact, children who are twelve (12) years and older must provide written consent before being adopted. However, there are certain circumstances in which the Supreme Court may overrule the child’s non-consent if they believe that an adoption would be in their best interest.
Moreover, consent must be retrieved from the biological parents for adoption to occur. If the mother and father are married or in a de-facto relationship at the time of adoption, then they both must consent. If the child is from a single mother, then consent is only required from her. Notice must be given to the father, who has fourteen (14) days to respond.
Types of adoption
There are three (3) main types of adoption that apply in Australia: local, intrafamily and overseas adoptions.
Local adoptions occur when the adoptive parent(s) are not known to the child. These are managed by the Department of Community and Justice Services (DCJ), which decides whether or not adoption applications are approved.
Other accredited adoption agencies to consider include:
In 2018-19, there were forty-two (42) local adoptions in Australia, representing 14% of all adoptions.
Intrafamily (or known-case adoptions)
Intrafamily adoptions occur when a child is adopted by a known carer, guardian or relative. These are the most common forms of adoption, with figures rising from 129 in 2009-10 to 211 in 2018-19.
While adoptions from relatives are considered legal, they are often discouraged as they can create confusing biological relationships. For instance, if an aunty decides to adopt their nephew, the birth parent will legally become their cousin.
Intercountry adoptions in Australia occur through a formal process, where a permanent resident, residing in Australia, travels overseas to adopt another child.
To adopt from overseas, the country must be a signatory of The Hague Convention on Protection of Children and Cooperating in Respect of Intercountry Adoption, which works to protect the most vulnerable group in society from abduction, sale or trafficking. The convention came into effect in Australia in December 1998 and ensures that intercountry adoptions work to protect the bests interests of the child and that they enter the safest families possible. Nearly all intercountry adoptions were from Asian countries, making up 96% of all finalised intercountry adoptions. These originated from South Korea (30%), Taiwan (26%) and the Philippines (26%).
Inter-country adoptions are often lengthy and tedious, but processing times are slowly reducing. In 2018-19 the median processing time dropped to 2 years and 1 month, sitting in stark contrast to the median processing time of 5 years and 4 months in 2014-15.
The rights of biological parents
It is a common misperception that biological parents have no rights over their child once they are adopted. However, birth parents in NSW have the right to maintain a relationship with their child. This is set out through Adoption Plans, outline an agreement on how the child will interact with their birth family. This often includes:
- How contact will occur between members of the child’s birth family to provide opportunities to build relationships,
- How information will be shared between the birth and adoptive families; and
- How the child will be supported to build their cultural identity and links with their heritage.
The Adoption Plans can be reviewed by the Supreme Court if the current arrangements are not suitable to present circumstances and you cannot reach an agreement with the birth parents about contact.
In limited circumstances, the Succession Act 2006 (NSW) allows for biological parents to pass their assets down to their biological children. This is performed in instances where they have no surviving relatives or have expressly written this into their Will.
Applying to adopt a child
In short, this application to adopt a child follows a seven (7) step process.
The initial inquiry involves understanding the issues and challenges that adoptive parents and adoptive children often face. Follow this link to learn more through the Family and Community Services adoption factsheet. For further information, complete the Adoption information package order form included in the Fact Sheet and return it to DCJ’s Adoption & Permanency Services with the relevant fee.
Expression of Interest for inclusion in adoption programs – local or intercountry
The Adoption Information package contains a booklet, titled ‘Considering adoption’ and an expression of interest (EOI) form. You may complete this form and send this back to Family and Community Services to see whether you meet the criteria to become adoptive parents.
Of note, the COVID-19 pandemic has halted all upcoming training seminars until further notice.
Preparing for the adoption seminar
If you are a first-time adopter, you are required to attend an Adoption Preparation Seminar. These run for three days and are held in Sydney.
Formal application for adoption
After completing the seminar, you will be asked which adoption program you are interested in – local or intercountry.
Initial screening test
Prospective parents will be screened by authorities from the Department of Families and Community Services and involves reviewing documentation such as medical reports, criminal record check, personal references, birth and marriage certificate and, if applicable, certificate(s) of naturalisation.
This is a requirement if you are adopting children over 24 months, sibling groups and the adoption of a specific child or children in permanent care.
The assessment can take three to four months to complete but provides prospective parents with an understanding all angles of the adoption process from an adoption specialist.
Determination of your suitability to adopt
The report is then sent to the relevant Program Manager, who determines whether they are eligible to adopt. If successful, the prospective parents’ names will be entered on the DCJ Register as approved adoptive parents. If this is not approved, it may be appealed under the Adoption Act.
What is surrogacy?
Surrogacy is viewed as a contentious issue in most societies, spawning fierce debate as to whether it is the ‘ultimate sacrifice’ or an unethical decision by a birth parent to give up her natural child. Like adoption, surrogacy is regulated by each State, meaning that there are no uniform laws that cover it across Australia. In New South Wales, surrogacy is legislated and regulated for by the Surrogacy Act 2010 (NSW). Some key features of this Act include:
- Protecting the interests of children born through surrogacy;
- Provide legal certainty for parents looking for children through surrogacy arrangement: and
- Preventing commercial surrogacies
For surrogacies to occur in Australia, the intended parents must meet the eligibility criteria and apply for a parentage order with the Supreme Court.
Criteria for surrogacy
Division 4 of the Surrogacy Act sets out the preconditions to making a parentage order:
- Surrogacy must be altruistic
- The birth mother is at least 25 years old
- All parties have received legal advice
- All parties have given informed concept to the agreement, prior to conception, and
- The child must have been living with the parents at the time of the surrogacy
Section 23 of the Surrogacy Act asserts that all surrogacies must be altruistic – that is, the surrogacy cannot be of a commercial arrangement.
Seeking legal advice
It is important for all parties involved in the surrogacy process to seek legal advice to understand how surrogacy will affect you and the loopholes that you may face when completing the application.
In NSW, the Surrogacy Act states that parties must seek legal advice before applying for a parentage order in the Supreme Court and to be recognised as the official parents of the child.
What is a commercial surrogacy?
Commercial surrogacies are a criminal offence under section 8 of the Surrogacy Act. This definition is set out in section 9 and provides that the arrangement is commercial in nature if it involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person:
- Agreeing to enter into or entering into the surrogacy arrangement, or
- Giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or
- Consenting to the making of a parentage order in relation to a child of the surrogacy arrangement
The maximum penalty for commercial surrogacy is 2,5000 penalty units, in the case of a corporation, or 1,000 penalty units or imprisonment for 2 years (or both), in any other case.
Advertising of surrogacy arrangements are prohibited under section 10 of the Act but does not apply if no fee was paid to publish the notice.
Parentage orders are stipulated under section 39 of the Surrogacy Act. When made:
- The child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and
- The child stops being a child of the birth parent, and a birth parent stops being the parent of the child.
Accordingly, parents will gain access to full parental responsibilities and the right to use their surname on the child’s birth certificate.
International surrogacy arrangements
Prospective parents seeking a surrogate often question whether they can find a surrogate mother who lives overseas. These are called international surrogacy arrangements.
International surrogacy arrangements are not illegal in Australia if they comply with the rules against commercial surrogacy. However, if the surrogate and the intended parents have had no previous relationship with one another, it can be reasonably assumed that the parents engaged in a commercial arrangement for the mother to carry he child.
Let us help you with the adoption and surrogacy process
If you’re looking for guidance through your adoption or surrogacy application, it’s time to find a reliable and experienced family lawyer.
Here at JB Solicitors, we’ll make the adoption and surrogacy process as pain-free as possible. We have fixed-free pricing for family law, giving you a clear sense of the cost of your divorce from the start and we’ll be sure to help you every step of the way.
With years of family law experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.
Contact JB Solicitors to get started on assistance with the adoption or surrogacy process, or for assistance with any other legal matter.