In the past 7 years of dealing with international surrogacy clients I have recommended parenting orders for Australian IPs and explained how they are important when things go wrong. Although all my clients have obtained affidavits from their surrogates many have decided not to subsequently proceed with the Application for parenting orders.
Today I learned of a horror story. A same sex couple undertook surrogacy in Thailand some 6 years ago. They did not obtain any affidavit from the surrogate and did not prepare any other documents for a possible future parenting order. Recently the biological father passed away. In Victoria the Department of Human Services is proposing to remove the child from the care of the surviving, non-biological intended father. I have been asked to assist and will advise of the ultimate outcome. Perhaps we should not be surprised that the DHS takes a black letter legalistic view of the relevant laws.
To repeat what I have said many times – under Australian law the intended parents through an international surrogacy program ARE NOT the legal parents of the child, regardless of whose names appear on the birth certificate.