Recently in the case of, Bernieres and Anor v Dhopal and Anor (2017) FLC 93-793, the Full Court of the Family Court of Australia delivered Judgment on some key issues relating to the legal position of parents in commercial surrogacy agreements.

The appeal was made by Australian couple Mr and Mrs Bernieres who sought parenting orders and a declaration of parentage over their surrogate child. The parties entered into an overseas surrogacy agreement, whereby Mr Bernieres provided his sperm to an anonymous donor for fertilisation and gestation. Months later, following the birth of the child, the couple are fighting to have their parental rights transferred in relation to the child.

The Family Court declined to declare parentage to Mr and Mrs Bernieres and stated that the current laws only apply in situations of conventional artificial conception procedures. Currently the legal mechanism by which parentage transfer is made does not relate to commercial surrogacy and is regulated by State and Territory laws.

Regarding the outcome of the Trial, Mrs Bernieres expressed that ‘it’s bizarre because this means on one hand the federal government recognised my husband as the biological father but another arm of the law says neither of us are her parents’. There have been calls for States and Territories to give up their powers to make laws on surrogacy, to allow the implementation of a single national scheme.