16Making of parentage orders

### 16 Making of parentage orders > > (1)  The court may make a parentage order on an application under [section 13](#GS13@EN) . > > > (2)  The court may make a parentage order under [subsection (1)](#GS16@Gs1@EN) only if it is satisfied as to all of the following matters: > > > > > > (a) the surrogacy arrangement – > > > > > > > > > > (i) was made after each person who was a relevant party at the time the arrangement was entered into received independent legal advice about the arrangement and its implications and the implications of a parentage order; and > > > > > > > > > > > (ii) was not a commercial surrogacy arrangement; > > > > > > > (b) the intended parent or, if there are 2 intended parents, both of the intended parents were 21 years of age or more when the surrogacy arrangement was made; > > > > > > > (c) the birth mother was 25 years of age or more when the surrogacy arrangement was made; > > > > > > > (d) the birth mother has previously given birth to a live child; > > > > > > > (e) the surrogacy arrangement is in writing, contains the names of the birth mother and the intended parent or intended parents, contains clauses in relation to the prescribed matters, if any, and is signed by each of the parties to the agreement; > > > > > > > (f) each person who, at the time the surrogacy arrangement was made, was a relevant party received – > > > > > > > > > > (i) before the arrangement was entered into; and > > > > > > > > > > > (ii) after the birth of the child and before the application for a parentage order was made – > > > > > > > > counselling from an accredited counsellor about the arrangement and its social and psychological implications; > > > > > > > (g) each party to the surrogacy arrangement, at the time the arrangement was entered into, was resident in Tasmania; > > > > > > > (h) there is a medical or social need for the surrogacy arrangement; > > > > > > > (i) if there were 2 intended parents under the surrogacy arrangement and they have not applied jointly for the parentage order, the intended parent who is to be named in the order as becoming a parent of the child has served the other intended parent under [section 14(6)](#GS14@Gs6@EN) with a copy of the application within the period referred to in that subsection; > > > > > > > (j) at the time of the hearing – > > > > > > > > > > (i) the child is living with the intended parent, or one of the intended parents, who is to be named in the order as becoming a parent of the child; and > > > > > > > > > > > (ii) each intended parent who is to be named in the order as becoming a parent of the child is resident in Tasmania; and > > > > > > > > > > > (iii) each person who is a relevant party at the time of the hearing consents to the making of the parentage order; > > > > > > > (k) the proposed order is in the best interests of the child. > > > (3)  Despite [subsection (2)](#GS16@Gs2@EN) , the court may make a parentage order even though it is not satisfied – > > > > > > (a) as to a matter mentioned in [subsection (2)(a)(i)](#GS16@Gs2@Hpa@Hqi@EN) , [subsection (2)(c)](#GS16@Gs2@Hpc@EN) , [subsection (2)(d)](#GS16@Gs2@Hpd@EN) , [subsection (2)(e)](#GS16@Gs2@Hpe@EN) , [subsection (2)(f)](#GS16@Gs2@Hpf@EN) , [subsection (2)(g)](#GS16@Gs2@Hpg@EN) , [subsection (2)(h)](#GS16@Gs2@Hph@EN) or [subsection (2)(j)(i)](#GS16@Gs2@Hpj@Hqi@EN) or [(ii)](#GS16@Gs2@Hpj@Hqii@EN) ; or > > > > > > > (b) that a birth parent (apart from the birth mother or birth mother's spouse) has consented to the making of the parentage order as required under [subsection (2)(j)(iii)](#GS16@Gs2@Hpj@Hqiii@EN) ; or > > > > > > > (c) that, where there were 2 intended parents, both of them have consented to the making of the parentage order as required under [subsection (2)(j)(iii)](#GS16@Gs2@Hpj@Hqiii@EN)  – > > > > if the court considers that making the parentage order is in the best interests of the child. > > > (4)  Despite [subsection (2)](#GS16@Gs2@EN) , the court may make a parentage order even though the birth mother, or the birth mother's spouse, has not consented, at the time of the hearing, to the making of the order, if – > > > > > > (a) the birth mother or birth mother's spouse – > > > > > > > > > > (i) does not have the mental capacity to give consent; or > > > > > > > > > > > (ii) has died; or > > > > > > > > > > > (iii) cannot be contacted, despite reasonable efforts having been made to do so; and > > > > > > > (b) the child is living with an intended parent who applied for a parentage order in relation to the child; and > > > > > > > (c) the court considers that making the parentage order is in the best interests of the child. > > > (5)  Subject to [Division 3](#HP4@HD3@EN) , in deciding whether to make the parentage order, the court may have regard to any other matter it considers relevant.