Surrogacy arrangements are carefully planned with the expectation that everyone involved with honour the agreed intentions.
However, when circumstances change before legal parentage of the child has been determined, the legal and practical issues surrounding the child’s care can become highly complex.
The recent decision of Taggart & Gowden [2026] FedCFamC2F 673 highlights the difficult questions the Federal Circuit and Family Court of Australia may need to determine when a surrogate changes their mind after a child’s birth.
Although this decision was made at an interim stage of the proceedings, it provides valuable guidance on how the Court approaches competing parenting proposals in the context of a disputed surrogacy arrangement.
Background
The child was born in 2026 to the respondent, who acted as the surrogate. The applicant’s were the intended parents – a married couple consisting of the intended non-biological mother, and the intended biological father. The surrogate was the intended father’s sister.
Before the child’s birth, the parties had entered into a surrogacy arrangement. However, shortly before or following the birth of the child, the surrogate informed the intended parents that she wished to withdraw from the arrangement and raise the child herself.
Given the child’s very young age and the importance of early attachment and caregiving, the matter was brought before the Court on an urgent interim basis.
At the interim hearing:
- The surrogate sought orders for the child to remain in her care while expert evidence was obtained in the form of a Family Report.
- The intended parents sought orders for the child to live with them, and for the surrogate to spend supervised time with the child.
This case was further complicated by several factors, including:
- The parties lived approximately 6 to 7 hours apart.
- All parties identified as Aboriginal, so consideration had to be made to the parties differing cultural connections and Country.
- The child had never met the intended parents at the time of the hearing.
- The surrogate was breastfeeding the child.
The issues
The Court had to determine several issues, including:
- Whether it could make an interim declaration of parentage in favour of the intended father.
- Whether the surrogate should be ordered to provide a copy of the child’s birth certificate to the intended parents.
- Where the child should live pending the release of a Family Report.
- If the child lives with the intended parents, whether an interim joint decision-making order should be made.
Alleged risk factors
As is common in interim parenting proceedings, the Court had to assess a range of alleged risk factors, without making final findings about them.
The concerns raised in this case included:
- The surrogate’s mental health history, including experiences of significant childhood abuse, neglect and trauma.
- Previous child protection involvement concerning some of the surrogate’s other children.
- The intended father’s mental health difficulties, including episodes associated with grief and personal loss.
- Allegations regarding the intended father’s historical cannabis use.
- Concerns about the stability of the intended parent’s relationship.
Importantly, none of the allegations had been finally determined, and the Court’s role at the interim stage was to assess risk only. No allegations were made about the intended mother posing a risk to the child.
Could the Court make an interim parentage order?
The intended father asked the Court to make a declaration of parentage in his favour.
The Court determined it could not make such an order on an interim basis.
Section 69VA of the Family Law Act 1975 (Cth) provides that a declaration of parentage is conclusive evidence of parentage for the purposes of Commonwealth law. Because of its final and determinative effect, the Court held that a declaration of parentage is a final order that could not be made temporarily.
This aspect of the decision reinforces the distinction between parenting orders – which can be made on an interim basis – and declarations of legal parentage, which finally determine a person’s legal status as a parent.
Why was the birth certificate important?
The Court ordered the surrogate to provide a copy of the child’s birth certificate.
Although this may appear procedural, the Court considered the document potentially significant, when considering the child’s best interests.
It was not known at the interim hearing who was listed as the child’s parents on the birth certificate. It was assumed the surrogate listed herself as the mother, and it was unknown if the intended father was listed as the father.
The Court observed that, if the surrogate and the intended father were both listed as the child’s parents, the child’s legally recognised parents would also be biological siblings. This raised important considerations about the child’s legal identity, their future understanding of their family history and broader psychological implications to the child.[1]
Where should the child live?
Perhaps the most significant issue before the Court was where the child should live pending a final determination.
The Court acknowledged that the child was loved by all parties and recognised the broader context of intergenerational trauma affecting the family.
In considering the historical child protection involvement, the Court also observed that Aboriginal children remain significantly overrepresented in the child protection system and cautioned against relying on those records at face value.[2]
The Court identified the intended mother as a significant protective factor, as she was an educator, had no identified mental health concerns and there were no allegations suggesting she posed any risk to the child.[3]
The Court decided that the child should live with the intended parents on an interim basis.
To address concerns about the intended father’s cannabis use, the Court required him to produce a negative hair follicle drugs test, and until that occurred, the intended mother was required to be substantially present whenever the child was in the intended father’s care.
The Court did not consider supervision of the surrogate’s time with the child to be necessary. Instead, orders were made for the surrogate to spend time with the child in the substantial attendance of the intended parents.
The Court commented that, had the parties lived closer together, it may have been possible to implement an arrangement allowing all parties to play an active role in the child’s care.[4]
Interim parental responsibility
The Court also made an order granting the intended parents joint decision-making responsibility for the child.
Although the reasons for this aspect of the decision were not extensively explained, the orders provided practical certainty while the parenting proceedings continued.
Without such orders, legal uncertainty may have arisen because the surrogate was likely recorded as the child’s legal parent on the birth certificate. Under the Family Law Act, this creates a presumption of parentage,[5] and would have made the surrogate a parent who would ordinarily have parental responsibility unless the Court ordered otherwise.[6]
Further, if the intended father was not listed on the birth certificate, it would mean neither the intended father nor intended mother, who were now the primary carers for the children, would ordinarily be allowed to make major decisions about the child.
This demonstrates the importance of parenting orders addressing decision-making responsibility where legal parentage remains unresolved.
Why this decision matters
Although this was only an interim decision, Taggart & Gowden illustrates the complex legal issues that can arise when a surrogacy arrangement breaks down before parentage has been determined or agreed.
The case highlights that the Court’s primary consideration is always the child’s best interests, and questions of legal parentage, caregiving arrangements, cultural identity risk assessment and practical realities all form part of that assessment.
Each surrogacy dispute will depend on its own facts, but this decision provides useful guidance on how the Court may approach competing parenting claims where intended parents and a surrogate are each seeking primary care of a newborn child.
Key takeaways
- A declaration of parentage cannot be made on an interim basis because it is a final determination of legal parentage.
- In parenting disputes arising from surrogacy arrangements, the Court’s paramount consideration remains the child’s best interests.
- The child’s legal identity, cultural background, early attachment and practical caregiving arrangements are all relevant considerations.
- Allegations of risk are carefully assessed at an interim stage, but the Court does not make final findings until all evidence has been considered at a final hearing.
- Parenting orders can provide certainty about who makes important decisions for a child while issues of legal parentage remain unresolved.
How we can help
Surrogacy disputes and complex parenting matters require careful legal advice, especially where questions arise about parentage, parental responsibility and the care of children.
Our experienced family law team regularly advises clients in complex parenting proceedings, which include matters involving assisted reproductive treatment, surrogacy arrangements, urgent interim applications and high-conflict parenting disputes.
We understand these cases are both legally and emotionally challenging, and our family lawyers work closely with our clients to develop practical strategies that protect their children’s best interests while navigating an evolving area of family law.
If you require advice about a parenting dispute or surrogacy-related matter, our team can provide clear guidance tailored to your family’s circumstances.
[1] Taggart & Gowden [2026] FedCFamC2F 673 (‘Taggard & Gowden’), [38] (Harland J).
[2] Ibid [77].
[3] Ibid [79].
[4] Ibid [80].
[5] Family Law Act 1975 (Cth), s 69R.
[6] Ibid s 61C.
