Some time ago, the ZS child-abandonment case dominated the headlines across major entertainment platforms. Because the incident breached relevant Chinese laws, ZS was also banned from the industry. So, if the ZS case had occurred in Australia, what legal consequences would it have triggered?

Who may use Assisted Reproduction Technology?

In Australia, anyone wishing to conceive through assisted reproduction technology must satisfy the following two conditions:

1. The woman and her partner (if any) both consent to the use of assisted reproduction technology.

2. A doctor reasonably believes that the woman is unlikely to conceive under normal circumstances.

Therefore, without a doctor’s certification, ZS would not have been able to use assisted reproduction technology in Australia. In addition, commercial surrogacy is not lawful in Australia. However, where the two conditions above are met, a surrogate may receive reasonable compensation. Reasonable compensation may include, but is not limited to, medical expenses.

Who is the child’s legal parent?

Where surrogacy is involved, the birth of a child may involve four adults, including the biological parents, the surrogate and the surrogate’s partner. But who is recognised as the parent in the eyes of the law? Australian federal law sets this out clearly (Family Law Act).

Where there is no surrogacy:

– If the child’s mother has a partner (husband, wife or de facto partner), the mother and her partner will be recognised by law as the parents of the child.

– If the child’s mother does not have a partner, the child’s mother will be recognised by law as the mother of the child. However, only in special circumstances may the sperm donor be recognised as the child’s father.

Where surrogacy is involved, the surrogate mother will be recognised by law as the mother of the child. If the surrogate mother has a partner, the partner will be recognised by law as the father/mother. If the surrogate mother does not have a partner, the sperm donor may be recognised as the child’s father.

If a contract is signed in advance with the surrogate to confirm who the child’s parents are, will it have legal effect? The answer is no, because the child’s parents are determined in accordance with the situations set out above, and this cannot be rebutted (irrebuttable presumption).

So, if the conditions for using assisted reproduction technology are all met, how can the biological parents become the child’s legal parents? The biological parents must apply to the court for substitute parentage in order to become the child’s legal parents.

That said, if a contract is in place, the time required to apply to become the child’s parents may be shortened, because the contract serves as strong evidence of the intentions of both parties.

So if ZS had sought surrogacy in Australia, ZS and her then-boyfriend would not have been recognised by law as the child’s parents from the outset.

While the biological parents are applying to the court for substitute parentage, what do they lose?

Because the biological parents have not yet been recognised as the child’s legal parents, and no parenting orders have been made by the court, the biological parents cannot use legal means to make decisions about the child’s medical care, schooling and so on. The process from applying to the court to becoming the child’s legal parents typically takes several months, and sometimes years. Throughout this process, both the child and the parents must endure unimaginable psychological pressure.

Since they are not the legal parents, does abandoning the child carry any legal liability?

Taking the ZS case as an example: if this had happened in Australia, ZS would most likely bear no legal liability for abandoning the child, as she did not have parental responsibility. However, because ZS had taken on the role of mother from the moment the child was born, either ZS or the surrogate mother could apply to the court. Where the court considers it appropriate, it will, based on the specific circumstances, order ZS to assume certain responsibilities. If such an order is issued and ZS fails to comply, she would then bear certain legal liability, and potentially even criminal liability. However, if no one applies to the court, the abandonment in the ZS case would not carry legal liability in Australia.