RECENT DEVELOPMENTS Untangling the Surrogacy Web and Exploring Legal Duties Following the Discharge of Mental Health Patients Bernadette Richards & Bill Madden & Tina Cockburn Received: 25 November 2014 /Accepted: 2 December 2014 /Published online: 4 February 2015 # Journal of Bioethical Inquiry Pty Ltd. 2015 Untangling the Surrogacy Web Surrogacy agreements represent unique legal questions that must be answered with great care. In Australia we had the recent BBaby Gammy^ scandal that involved an international surrogacy agreement and claims of aban- donment of a child with Down’s syndrome. This story served to reinforce concerns that surrogacy turns chil- dren into a commodity that can be put to one side if expectations are not met. Of course, surrogacy agree- ments do not always end in this manner and often the outcome is positive. There are, however, underlying legal questions regarding the status of the child, with some children, born as the result of international surro- gacy agreements, being practically stateless when the nation of the commissioning parents refuses to issue passports to allow the children to return Bhome^ with their Bparents.^ Where the relationship is local, however, and there is clear legislation, the issues can be less problematic but can become complex where a party wishes to withdraw from the agreement, the child is deemed to be less than Bperfect,^ or the parties wish to create a relationship that is outside of existing legal framework. In Australia there was originally reluctance to ac- knowledge surrogacy as an appropriate arrangement, but in more recent times there has been a significant policy shift and now all jurisdictions except for the Northern Territory have legislative recognition of altru- istic surrogacy agreements. 1 In each of these jurisdic- tions (besides Western Australia), the relevant Acts make provision for parentage orders to be made by the appropriate court (this differs between jurisdictions; in South Australia, for example, the orders are made by the Youth Court of South Australia and in New South Wales it is the Supreme Court), and a birth certificate can be amended to indicate that the commissioning parents are the parents of the child. The original documentation is not, however, to be destroyed, and the child can, upon application, obtain access to the full record. Western Australia has taken the additional step of creating a presumption that it is in the best interests of the child for the Barranged parents^ (commissioning parents) to be named as the parents of the child (s 13(2) Surrogacy Act 2008 (WA)). Thus the legislatures in Australia have taken proactive steps to try to ensure certainty with regards to parentage of children born as a result of Bioethical Inquiry (2015) 12:25–29 DOI 10.1007/s11673-014-9592-6 1 See, for example, Parentage Act 2004 (ACT), Surrogacy Act 2010 (NSW), Surrogacy Act 2010 (Qld), Family Relationships Act 1975 (SA), Surrogacy Act 2012 (Tas), Assisted Reproductive Treatment Act 2008 (Vic), and Surrogacy Act 2008 (WA). B. Richards (*) Adelaide Law School, University of Adelaide, Adelaide, Australia e-mail: bernadette.richards@adelaide.edu.au B. Madden National Practice Group Leader, Medical Law, Slater & Gordon; Adjunct Fellow, School of Law, University of Western Sydney, Sydney, Australia e-mail: bill.madden@slatergordon.com.au T. Cockburn School of Law, Queensland University of Technology, Brisbane, Australia e-mail: t.cockburn@qut.edu.au