The First Australian Mother To Win Parent Right Recognition Over Her surrogate child

26.04.2011

AN Adelaide woman with a surrogate son has won a landmark case to be named on the child's birth certificate.
After a six-year legal battle, the woman this week became the first Australian to win the right to be officially recognised as the mother of a child carried by a surrogate.

The woman, who cannot be named, is the child's genetic mother - her egg and her husband's sperm were used to conceive the boy in the womb of an interstate surrogate.

Surrogacy advocates praised the Youth Court ruling, calling it "a vital step" in the ongoing struggle for the recognition of genetic parents.

Sam Everingham, secretary of Australian Families Through Gestational Surrogacy, said its importance "could not be understated".

"This finally gives a parent the legal recognition that should always go with the genetic relationship to their kids," he said.

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"It's a terrific step forward for the hundreds of families around Australia who have or are using surrogacy.

"It's also important for all the Australian children born of surrogacy, who want and need their genetic parents to be recognised."

The woman and her family have been fighting to have her name placed on her son's birth certificate.

On Thursday, her application was heard by the Youth Court in Adelaide.

Senior Judge Stephen McEwen granted her application under the Statutes Amendment (Surrogacy) Act, which was introduced in 2009.

That act made surrogacy legal in South Australia, provided both the "commissioning parents" and the surrogate are based in this state.

It further states the "commissioning mother" must be recorded on the child's birth certificate as its mother.

Under a special provision, any woman who used an interstate surrogate before November 2010 also will receive the same recognition, provided they seek court action before January 2012.

Senior Judge McEwen used that provision to grant the woman's application.

Yesterday, supporters said the family was "thrilled beyond belief" after more than six years of struggle.

Surrogacy law expert Julie Redman said it was vital that government agencies truly recognised genetic mothers.

"These are the biological parents of their own biological children, but the birth certificate has always named the surrogate instead," she said.

"The need for this (decision) has long been out there."

She urged other families to file action as soon as possible. "This is a nine-month window and, if mothers don't hear the message that this window is closing, they will never achieve what they want to," she said.

Mr Everingham said that "at a minimum", between 500 and 700 heterosexual and homosexual Australian couples had used surrogacy.

The majority of those, he said, had sought help overseas and therefore would not benefit from the Youth Court decision.

"Hundreds of families are left without their names on birth certificates because state governments are uncomfortable with awarding the same status to parents who go overseas," he said.

"This is a great start, but there's still progress to be made and a fight to be had."

Liberal MLC John Dawkins, whose private members Bill legalised surrogacy in SA, said it was vital "we got the first case right".

"Without her name on that certificate, the mother was unable to enrol her child in kindy, or take him on a plane, or anything else that a parent should be able to do," he said.

"To say that they would now be happy and ecstatic would be an understatement."

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