Surrogacy can provide people who are unable to give birth with an opportunity to have a child. However, surrogacy can involve important medical, emotional, financial and legal issues.
The rules about surrogacy are different across Australia. If you are thinking about surrogacy, it is important to understand the basic rules and get professional advice before making any arrangements.
What is surrogacy?
Surrogacy is an arrangement where a woman (the surrogate) becomes pregnant and gives birth to a child for another person or couple, known as the intended parents.
There are different types of surrogacy arrangements. The most important legal distinction in Australia is between altruistic surrogacy and commercial surrogacy.
Altruistic surrogacy
Altruistic surrogacy is permitted in all Australian states and territories.
In an altruistic arrangement, the surrogate does not receive payment or make a profit from the arrangement. However, she can generally have reasonable expenses connected with the pregnancy and surrogacy covered.
What expenses can be covered depends on the laws of the relevant state or territory. You should obtain legal advice before agreeing to any payments or expenses.
Commercial surrogacy
Commercial surrogacy is where a surrogate receives payment beyond reasonable expenses or makes a profit from the arrangement.
Commercial surrogacy is illegal in Australia.
There are also laws that can apply when Australians enter into commercial surrogacy arrangements overseas. Depending on the circumstances, Australians who use commercial surrogacy overseas may face legal difficulties, including problems being recognised as the child's legal parents in Australia.
Who are the legal parents?
One of the most important things to understand about surrogacy is that the person who gives birth is generally the child's legal parent at birth.
In an Australian surrogacy arrangement, the surrogate — and sometimes her partner — is usually the legal parent or parents when the child is born.
The intended parents do not automatically become the child's legal parents simply because they planned the surrogacy or provided the genetic material.
In most cases, the intended parents need to apply to a court for an order transferring legal parentage to them.
The court will generally consider whether the requirements of the relevant state or territory's surrogacy laws have been followed.
Why legal advice is important
Surrogacy laws are different in each Australian state and territory. The rules can also depend on where the intended parents live and where the surrogacy arrangement takes place.
There may be requirements relating to:
who can enter into a surrogacy arrangement
medical treatment
counselling
independent legal advice
informed consent
payment of expenses
written surrogacy agreements
the birth of the child
applying for a parentage order after birth.
Because of these differences, it is important to speak with a lawyer who specialises in surrogacy law before entering into an arrangement.
An agreement between the intended parents and the surrogate does not necessarily determine who the legal parents will be.
What happens if the rules are not followed?
If the requirements of the relevant surrogacy law are not followed, the intended parents may not be recognised as the child's legal parents.
In some circumstances, the surrogate may remain the child's legal parent.
This can affect important matters such as:
who can make decisions for the child
where the child lives
medical decisions
education
financial responsibilities
government benefits
inheritance and other legal rights.
In limited circumstances, a court may have other options available, including orders relating to parental responsibility.
Legal parentage and parental responsibility are different
These two concepts are important, but they are not the same.
Legal parentage means being recognised by law as a parent of the child. Legal parents generally have legal rights and responsibilities connected with the child.
Parental responsibility refers to the duties, powers and responsibilities involved in making important decisions for a child.
A person may have parental responsibility without being recognised as the child's legal parent.
For example, a court may make an order giving someone parental responsibility for a child even though another person remains the child's legal parent.
These arrangements can be complex, so specialist legal advice is important.
Surrogacy overseas
Some Australians consider surrogacy in another country. This can create additional legal and practical risks.
The laws of another country may be very different from Australian law. A foreign country may not provide the same protections for the surrogate, the child or the intended parents.
There can also be difficulties with:
establishing legal parentage
obtaining citizenship
obtaining a passport or travel documents
bringing the child back to Australia
recognising overseas court orders
ensuring the child's rights are protected.
An overseas court order does not necessarily mean that the intended parents will automatically be recognised as the child's legal parents in Australia.
If you are considering international surrogacy, obtain Australian legal advice before making any arrangements or travelling overseas.
Medical and counselling support
Surrogacy is not only a legal process. It can also involve significant medical and emotional issues for the surrogate, intended parents and child.
Australian assisted reproductive technology clinics must follow national ethical guidelines as well as applicable state and territory laws.
Counselling is an important part of the surrogacy process. People involved in surrogacy should have the opportunity to understand the emotional and practical issues before, during and after treatment.
Medical advice should be obtained from appropriately qualified fertility and pregnancy professionals.
Where can I get help?
The Australian Government's surrogacy information service provides general information about surrogacy laws and where to seek further advice.
For legal questions, speak to our lawyer who specialises in surrogacy law.
For medical questions, speak with your doctor, fertility specialist or other qualified health professional.
You can also find information about pregnancy and surrogacy through the Australian Government-funded Pregnancy, Birth and Baby service on Surrogacy | Pregnancy, Birth and Baby.
Important information
Surrogacy laws can be complicated and they can change. The information on this page is intended as a general introduction only. It is not legal, medical or financial advice.
Your rights and responsibilities will depend on your individual circumstances and the laws that apply to your situation.
If you are considering surrogacy, contact us today to get independent legal and professional advice before entering into a surrogacy arrangement or starting treatment.
Key points to remember
Altruistic surrogacy is permitted in all Australian states and territories, subject to the relevant laws.
Commercial surrogacy is illegal in Australia.
The surrogate is generally the child's legal parent at birth.
Intended parents usually need a court order to transfer legal parentage to them.
Surrogacy laws are different across Australian states and territories.
International surrogacy can involve significant additional legal risks.
Legal parentage and parental responsibility are not the same thing.
Independent legal, medical and counselling advice is strongly recommended.
