A complete guide to surrogacy laws in Australia

Every year, for many different reasons, Australians are increasingly turning to surrogacy as a way to have a family. With adoption becoming a more and more regulated and restrictive process in Australia, surrogacy offers an exciting way through which to start a family. 

By Evan Avtzis, Lawyer at Roger Fritz LLP-Kordos Lawyers, Melbourne

For many Australians, such as women who are unable to fall pregnant due to medical reasons, single people who want a child, and same-sex couples, this process can be their only way to start a family.

What is surrogacy?

Put simply, surrogacy is an arrangement for a woman to become pregnant with, and give birth to, a child for another person (or couple), with the intention of giving that child to that person (or couple) once it is born.

There is no cookie-cutter mould for the type of person that chooses to become a surrogate. Women at various stages of their lives act as a surrogate for very different reasons. For some, the connection is personal, and they want to help a loved one who cannot fall pregnant. For others, it may be a different reason entirely. There is however one common thread that unites surrogates, that is, a desire to help others experience the joys of parenthood.

Surrogacy laws in Australia

When referring to surrogacy, there are two different types of surrogacy, namely:

• Traditional surrogate – where the surrogate provides their own egg, usually during an artificial insemination process; and
• Gestational surrogacy – where all genetic material is provided by either the intended parent/s or a third party.

There are also two broad categories for surrogacy arrangements. These are altruistic surrogacy and commercial surrogacy.

Altruistic surrogacy

Altruistic surrogacy is an arrangement in which the surrogate does not receive any payment or financial advantage as a reward for acting as a surrogate. Intended parent/s may reimburse surrogates for any costs and medical expenses that are associated with pregnancy but do not provide any other form of financial incentive to a surrogate (including the provision of goods and services).

Commercial surrogacy

Commercial surrogacy is an arrangement in which a surrogate agrees to act as a surrogate for the intended parent/s in return for a reward (usually a financial payment) above and beyond the reimbursement of costs and medical expenses associated with pregnancy.

State by state

The laws regulating surrogacy change pretty drastically from state to state (while the Northern Territory has no regulations in place at all) and so it can be very difficult to navigate the dos and don’ts for both soon to be parents and surrogates.

Thankfully there are some general rules in place which can help people who may be considering surrogacy understand what is, and what is not, legal where they live.

For all states and territories (other than the NT), the following applies:

• It is against the law to enter into a commercial surrogacy agreement anywhere in Australia.
• In all places other than SA and the ACT, a surrogate must be at least 25 years old before being allowed to act as a surrogate. In SA and the ACT, surrogates must be at least 18 years old.
• In most jurisdictions, a medical need for surrogacy is required (although NSW, TAS, QLD and VIC allow surrogacy for social reasons, such as same-sex couples). It should be noted that WA specifically excludes ‘age’ as a suitable medical reason and that the ACT does not have any medical or social requirements for surrogacies.
• In VIC, TAS and the ACT, surrogates must have already given birth to Financial Institutions themselves before being allowed to act as a surrogate.
• Surrogacy is open to same-sex couples in all States and Territories except for WA.
• Surrogacy is open to single women in all States and territories except for the ACT however, the same is not true for single men.
• A written agreement setting out the surrogacy agreement is required to be in place in all States and Territories except for VIC and the ACT.
• Traditional surrogacy is permitted everywhere in Australia except for the ACT.
• You are not allowed to advertise (whether seeking a surrogate or wishing to be a surrogate) in the ACT, QLD, and VIC. This includes publishing online.

The laws regulating surrogacy can be very confusing as they change from place to place. It is recommended that parties considering entering into a surrogacy arrangement should obtain expert advice from an experienced family lawyer in their state or territory.

Surrogacy options overseas

The laws around surrogacy become infinitely more complicated when considering overseas surrogacy.

As multiple jurisdictions begin to overlap and govern the process of surrogacy, it becomes increasingly difficult to keep track of what is required by law.

While commercial surrogacies are not allowed in Australia, some other countries still allow commercial surrogacies to take place. When considering whether to enter into an overseas surrogacy arrangement (especially a commercial one), expert legal advice should be obtained regarding the laws around international surrogacy in both your home state or territory and in the country where the surrogate mother is resident. It is also important to keep in mind that in the ACT, New South Wales and Queensland it is an offence to make a commercial surrogacy arrangement outside of Australia and so, parents who do so could face legal issues when returning to Australia.

Consideration should also be given to what citizenship a child will have upon birth and how the intended parents plan to bring them to Australia. Different countries have different laws regulating who may obtain citizenship.

Financial Institutions born to Australians overseas do not automatically become Australian citizens and there are certain requirements that must be fulfilled when making an application. One such requirement is the provision of a surrogacy contract that was entered into before the child was conceived. This is a complex document that should be drafted with the assistance of lawyers with experience in Family Law in both Australia and the country where the surrogacy arrangement took place.

Other surrogacy legal considerations

In addition to the mountain of rules and requirements for parties entering into a surrogacy arrangement, consideration must also be given to Parentage Orders and any preconditions that must be met in order for them to be made. Parentage Orders are effectively an Order by the Court to amend the Birth Certificate of a child to reflect the intended parents of a surrogacy agreement as to the child’s parents (and not the surrogate or ‘birth mother’ and her partner).

In Victoria, in order for a Parentage Order to be made, the following criteria are required:

• The surrogacy received pre-approval from the Patient Review Panel.
• All parties received appropriate counselling about surrogacy.
• The child is living with the intended parents in Victoria when the application is made.
• The Parentage Order has been consented to by the surrogate (and her partner if she has one).
• The Order must be in the best interest of the child.

There are also time limitations for seeking a Parentage Order, which differ from state to state.

Starting a family should be an exciting time in your life and shouldn’t be made difficult by the stresses of navigating complex laws.

Thinking of entering into a surrogacy arrangement in Australia or overseas? Give us a call or request a callback from our friendly team via the form below and we can help you navigate the realm of surrogacy laws in Australia.