For most intended parents, obtaining a parentage order is the final — and most meaningful — step in the surrogacy process. It is the point at which the law formally recognises them as their child’s legal parents.
Although it may seem like a formality, the Supreme Court of New South Wales examines every application carefully. The process is designed to protect the surrogate, the intended parents, and above all, the child. Understanding how the court approaches these decisions can help ensure a smooth and successful application.
What Is a Parentage Order?
A Parentage Order is a Supreme Court order that permanently transfers legal parentage of a child from the surrogate (and her partner, if any) to the intended parents.
It is made under Part 3 of the Surrogacy Act 2010 (NSW) and has the effect of:
Making the intended parents the child’s legal parents for all purposes.
Extinguishing the surrogate’s legal parentage.
Directing the NSW Registry of Births, Deaths and Marriages to issue a new birth certificate naming the intended parents.
Once made, the order creates the same legal relationship as if the intended parents had given birth to the child themselves.
The Court’s Role and Discretion
The Supreme Court of NSW (Equity Division) has exclusive jurisdiction to determine applications for parentage orders.
While the process may appear administrative, the court exercises a careful judicial discretion. It must be satisfied that every statutory requirement has been met and that making the order is in the best interests of the child.
The court’s function is protective — not adversarial. It ensures that the surrogacy arrangement was ethical, lawful, and transparent before altering one of the most significant legal relationships that can exist: parent and child.
Legal Requirements the Court Must Be Satisfied Of
Under Division 4 of the Surrogacy Act 2010 (NSW), the court can only make a parentage order if it is satisfied that:
The surrogacy arrangement was altruistic — no payment or reward was given other than reimbursement for reasonable expenses.
The arrangement was made before conception.
The child was conceived by an assisted reproductive procedure.
Each party obtained independent legal advice and counselling before conception.
The surrogate freely consents to the making of the order at least 30 days after the birth.
The application is filed within six months of the child’s birth.
The child is living with the intended parents at the time of the application.
The order is in the best interests of the child.
If any requirement is not met, the court has a limited discretion under the Act to “dispense with” strict compliance, but only if there are compelling reasons and no one would be unfairly prejudiced.
The Evidence the Court Requires
Parentage order applications are document-intensive. The court expects clear, thorough evidence that all statutory requirements have been met. This usually includes:
Affidavits from the intended parents, the surrogate, and (if applicable) the surrogate’s partner.
Certificates of legal advice confirming that each party received independent advice before conception.
Certificates of counselling verifying that all parties received professional counselling about the emotional and legal implications of surrogacy.
A copy of the written surrogacy agreement and a summary of any expenses paid or reimbursed.
The child’s birth certificate.
Consent documents from the surrogate given at least 30 days after birth.
The court reviews the timing of each document carefully. Legal advice and counselling must occur before conception — if they were obtained later, the application may fail unless the court exercises its discretion to excuse the irregularity.
The “Best Interests of the Child” Principle
The Surrogacy Act 2010 (NSW) places the best interests of the child at the heart of every decision.
In assessing this, the court looks beyond technical compliance to consider the real-world circumstances of the child and the adults involved. Factors commonly assessed include:
The stability of the child’s current living arrangements.
The nature of the child’s relationship with the intended parents.
Whether the surrogate freely and genuinely consents to the order.
The intended parents’ ability to meet the child’s emotional and financial needs.
The overall transparency and honesty of the arrangement.
This focus ensures that parentage is transferred only when it benefits the child and reflects the reality of the child’s family life.
How the Court Applies the Legal Principles
While every surrogacy case turns on its facts, the court consistently applies several guiding principles when deciding whether to make an order:
Strict but fair compliance.
The law’s procedural requirements — pre-conception counselling, legal advice, and timing — are not optional. However, minor technical errors may be excused if they do not compromise consent or the child’s welfare.Genuine consent.
The court must be satisfied that the surrogate understands the effect of the order and has freely chosen to consent. Judges often pay close attention to the surrogate’s affidavit and counselling report to confirm this.Transparency about payments.
Any payment to the surrogate must be limited to reimbursement of reasonable expenses. The court scrutinises these closely to ensure the arrangement is altruistic, not commercial.Best interests override formality.
Even when minor documents are imperfect, the court may still make the order if it is clearly in the child’s best interests and all parties acted in good faith.
These principles balance compassion with caution — confirming parentage only when the process has been ethical, informed, and consistent with public policy.
Common Reasons for Delay or Refusal
Although refusals are rare when parties are well prepared, applications can be delayed or dismissed if:
The application is filed outside the six-month limit without adequate explanation.
Legal advice or counselling occurred after conception.
Payments appear to go beyond reasonable expenses.
Consent forms are incomplete or not properly executed.
The child is not yet living with the intended parents.
These problems are almost always avoidable with early legal involvement and accurate record-keeping.
How the Court Process Works
Unlike many court proceedings, parentage order applications are usually decided in chambers — meaning the judge determines the matter on the papers rather than through an in-person hearing.
If the documentation is complete and there are no contentious issues, the application can often be finalised without anyone attending court. The judge reviews the affidavits, certificates, and supporting material, and if satisfied, makes the order with written reasons.
If clarification is needed, the court may request further affidavits or brief written submissions. The process is designed to be respectful, private, and efficient.
After the Order Is Made
Once the court grants the parentage order:
The Registry of Births, Deaths and Marriages issues a new birth certificate naming the intended parents.
The surrogate and her partner cease to have parental rights or obligations.
The intended parents gain full parental responsibility under both state and federal law.
For most families, this marks the end of the legal process and the formal beginning of their life together as a recognised family unit.
Why Preparation Matters
Most issues that delay parentage orders arise from paperwork rather than disagreement. Ensuring that every step — from counselling to consent — is documented properly makes the final stage straightforward.
An experienced surrogacy lawyer coordinates the legal advice, counselling, and evidence so that the application meets every statutory requirement and the judge has all the information needed to make the order confidently.
Early advice also helps avoid inadvertent breaches, such as payments that might be viewed as commercial or agreements signed after conception.
Key Takeaways
The Supreme Court of NSW grants parentage orders under the Surrogacy Act 2010 (NSW).
The court must be satisfied that all legal requirements are met and that the order is in the best interests of the child.
Applications are generally dealt with in chambers rather than in open court.
Complete, timely documentation is essential — especially certificates of counselling and legal advice.
Early legal advice ensures compliance and prevents delays at the final stage.
Surrogacy in NSW
Having explored how courts assess applications for parentage orders under surrogacy arrangements in NSW, you may also find it helpful to review our related guides that cover key aspects of surrogacy law and practice:
Surrogacy in Australia — a national overview of how surrogacy is regulated across Australia.
The Legal Process of Surrogacy in NSW — walks through the steps, eligibility requirements and documentation for entering into a surrogacy arrangement and applying for parentage orders.
Altruistic vs Commercial Surrogacy: What’s Legal in Australia — compares the permitted forms of surrogacy in Australia and the legal consequences of non-compliance.
Who Are the Legal Parents in a Surrogacy Arrangement — clarifies how legal parentage is established and transferred following a surrogacy arrangement.
What Happens If a Surrogacy Arrangement Breaks Down — discusses risks, legal consequences and options where arrangements do not proceed as planned.
International Surrogacy: What Australian Parents Need to Know — guides you through the extra complexities when surrogacy involves overseas arrangements, recognition of parentage and immigration issues.
Reviewing these resources together will help you develop a fuller understanding of how parentage orders fit within the broader surrogacy framework — from eligibility and documentation, through to legal recognition and cross-border implications.
Need Help with a Parentage Order?
At Thornton + King, our surrogacy lawyers regularly assist intended parents and surrogates through the parentage order process. We ensure your application is compliant, complete, and handled with care — so that your family can move forward with confidence.
To speak to a family law surrogacy specialist, give us a call or submit an enquiry now.
