The Surrogacy Act 2010 (NSW) says that a commercial surrogacy arrangement is a crime, punishable by fines and/or an sentence of up to 2 years imprisonment. A Commercial surrogacy arrangement is a surrogacy arrangement where a participant in the arrangement is provided with a fee, reward, or other material benefit or advantage.
The law was first put together to prevent the “commodification” or “commercialisation” of life. We have all heard stories about impoverished but fertile mothers in India and Ukraine being given a pittance to carry a pregnancy to its full term, with the fertility centre pocketing most of the profit. The law aims to prevent those situations from occuring. However, even if you are satisfied that an overseas fertility centre is doing the right thing by its birth mothers, the law also prevents you from engaging that overseas fertility centre so long as it gives any reward, fee, or advantage to the birth mother in excess of her costs.
But that’s not all. We have personally been asked in the past if it was fine to, “as a token of gratitude”, give a gift in appreciation to the birth mother, who has blessed the intended parents with the ability to start a family. The answer is no – it shouldn’t be done. A token of appreciation might turn the arrangement from an altruistic arrangement to a commercial arrangement.
You should always be careful and consider your actions – you don’t want to risk breaching the law, or worse, having your Surrogacy application fail when you finally get around to to it.