Navigating the Various Surrogacy Laws in Australia
One of the fundamental aspects of surrogacy in Australia is that the arrangement between the Intended Parents and their Surrogate (the Birth Mother and if she has one, the Birth Mother’s Partner) must be altruistic, meaning that the Surrogate cannot receive any commercial benefit out of this arrangement. However, aside from this core requirement, each state has its own unique criteria which must be met before the parties can enter into a surrogacy arrangement under the law of that state.
It’s not uncommon that Intended Parents and their surrogates to find themselves living in different states in Australia. Aside from the geographical challenges, the other aspect that requires navigating is the differing surrogacy laws of each state. So, to help ease that burden, here’s a snapshot of the main aspects of the various surrogacy laws in Australia:
Eligibility of Intended Parents for Surrogacy
New South Wales, Queensland, Victoria and Tasmania allow single or married/de facto couples to be Intended Parents as long as they have a medical or social need for surrogacy. That means that most people are able to tick this box, regardless of their relationship status or sexual orientation.
However, in the other states, only heterosexual couples (married or de facto) and single women with a medical need for surrogacy are able to be Intended Parents under the laws of these states.
Age of Surrogate
All states require the surrogate to be at least 25 years in age before entering into any surrogacy arrangement.
While Victoria, Western Australia and Tasmania require that the surrogate must have given birth to a child previously, legislation in the other states only limit the eligibility criteria to the 25 year age requirement mentioned above.
Our practice is focused on surrogacy in NSW and in order for NSW legislation to apply to your surrogacy arrangement, the Intended Parents need to be NSW residents at the time of the hearing of the application for parentage order.
Current surrogacy laws are still evolving and until there is a uniform surrogacy legislation in Australia, hopeful Intended Parents have considered moving and indeed ultimately moved interstate due to the more favourable legislation in NSW. If this is a situation that applies to you or is something you’re considering, please get in touch and we’d gladly help you navigate the challenges associated with interstate surrogacy.
For more information on our surrogacy services and quotes on our professional fees, please contact us or visit our quoting page. One of our experienced surrogacy lawyers would be more than happy to get in touch to see how we can best assist you along your journey.
As a couple looking at having a child through surrogacy, after you have identified your surrogate, the next step is to enter into a surrogacy arrangement.
Importantly, you must enter into this arrangement BEFORE your surrogate becomes pregnant (ie, a pre-conception surrogacy arrangement). A pre-conception surrogacy arrangement is necessary if you eventually want to successfully apply for a parentage order, declaring that the child is legally recognised as your child.
In basic terms (see below for the legislative references), a surrogacy arrangement must be in writing and address the basic agreement to become pregnant and when born, the child’s parentage would be transferred. However, at this point, many people find themselves a little lost simply because the Surrogacy Act does not provide direction as to how and what they are supposed to do in terms of writing the surrogacy arrangement.
Fortunately, this is where we can assist. Our experienced family law lawyers have assisted many couples with preparing and reviewing written surrogacy arrangements. You can either choose from our standard precedent surrogacy arrangements, but if they are not relevant or suitable to what you and your surrogate or her partner have agreed, we can easily customise the surrogacy arrangement to meet your specific requirements and reflect your situation.
What does the Surrogacy Act say about surrogacy arrangements?
Section 5(1)(a) states:
“An arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a “pre-conception surrogacy arrangement”)”
Section 6 states:
“(1) A surrogacy arrangement is not enforceable.
(2) However, an obligation under a surrogacy arrangement to pay or reimburse the birth mother’s surrogacy costs is enforceable, but only if the surrogacy arrangement is a pre-conception surrogacy arrangement.”
Section 23(1) states:
“The surrogacy arrangement must not be a commercial surrogacy arrangement.”
Section 24(1) states:
“The surrogacy arrangement must be a pre-conception surrogacy arrangement.”
Section 34(1) states:
“The surrogacy arrangement must be in the form of an agreement in writing, signed by the birth mother, the birth mother’s partner (if any) and the applicant or applicants.”
Section 36 states:
“Each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement.
The legal advice obtained by the birth mother and the birth mother’s partner (if any) must have been obtained from an Australian legal practitioner who is independent of the Australian legal practitioner who provided legal advice about the surrogacy arrangement to the applicant or applicants.”
What does the Surrogacy Act not say about surrogacy arrangements?
The Surrogacy Act does not say:
Who or how to write a surrogacy arrangement.
The contents, form or format of a written surrogacy arrangement, aside from the agreement to be pregnant and the parentage of the child.
What should you do about surrogacy arrangements?
In the absence of clear direction from the Surrogacy Act as to how you should write a surrogacy arrangement and what that surrogacy arrangement should contain, it is important to obtain specific legal advice from an appropriately qualified legal professional.
If you have an existing or proposed surrogacy arrangement and you need us to review it to ensure that it complies with the Surrogacy Act (and/or for independent legal advice as required by the parentage order), please contact us by uploading a copy using the form below.
My Personal Invitation
Choosing to have a child through surrogacy or agreeing to be a surrogate mother is an important life choice that shouldn't be taken lightly. As the father of two boys, I personally know the joys (and challenges) of being a parent. I also understand why you're going through what you're going through to become a parent yourself. That's the human condition.
By the time you're reading this article, you've probably spent a small fortune on medical expenses and taken a ride on an emotional roller coaster which I'm sure has had a physical and psychological toll on you and your family. But if you're here, then you've come to the right place and you're heading in the right direction.
My team of lawyers and I have been helping intended parents and surrogate mothers (and their partners) understand their rights and obligations arising from surrogacy, as well as the legal process necessary to ensure a successful outcome, even before the Surrogacy Act was introduced. During this time, we've noticed that there's a general lack of reliable information regarding surrogacy in the public space (including the internet) and that's why we're proud to have developed this website. We developed this website to help you in your research, to understand your legal rights and obligations, and to guide you each step of the way in terms of the legal and social issues that you'll face.
Allow us to have privilege of advising you and representing you throughout the surrogacy process and share the joy of your new family.
This website is maintained by Phang Legal, a boutique legal practice in Parramatta that provides legal advice and representation in surrogacy and family law related matters for intended parents and surrogate/birth parents across New South Wales.
Ern Phang is the solicitor director of Phang Legal. Ern regularly writes about his experiences in helping clients with understanding their legal rights and obligations in surrogacy matters.
All information contained in this article is for general purposes only and correct as at the time of publication. You should only rely on information and advice that is specific to your situation and current at the time you wish to rely on it.
The world continues to get smaller, and as it does, a lot of things once thought impossible becomes possible. Unfortunately, sometimes this creates undesirable results.
We’ve written on several occasions now on recent issues and developments in international surrogacy – and unfortunately not many of those developments have been helpful to couples wishing to grow their family. The Baby Gammy case has resulted in a tightening of regulations in Thailand, and recent events has led to India placing a limited ban on surrogacy.
It has since emerged that an Australian couple allegedly abandoned a baby boy in India because they “already had a boy at home” and “only wanted the girl”.
If this is true, this is a terrible thing. What these surrogates are doing should be considered a favour. Even if the arrangement is a commercial one, they have done nothing to warrant such poor behaviour.
To a certain extent, the Surrogacy Act 2010 (NSW) prevents this sort of bad behaviour. The safeguards that it puts in place – counselling, legal advice, and a report by an independent counsellor after the child is born, can go towards preventing some of these tragedies from occurring.
The end result is that the child born from the surrogacy arrangement is legally recognised as the child of the intended parents – and if done right, both you and your surrogate would have some peace of mind that you have done the right thing, and in the right way.
Getting a Parentage Order from the Supreme Court to recognise a child born from a surrogacy arrangement isn’t easy – as previously discussed, there are a number of requirements that you must satisfy before this is granted.
Some of these requirements must be put in place before entering into the surrogacy arrangement!
Requirements which are not marked as mandatory are considered non-mandatory – which means that the Supreme Court has a discretion to waive the requirements of the Surrogacy Act. That being said, this discretion is not exercised lightly – the Supreme Court must be satisfied that exceptional circumstances exist to exercise that discretion.
Because of the numerous requirements under the Surrogacy Act, it is best to get help to make sure that you don’t slip up and make a mistake – resulting in a failed application. We can certainly help you out there – give us a call at 02 9687 8885 for more information.
International surrogacy has been on the rise recently, and we have previously written on the subject. Recently, a spotlight has been cast on international surrogacy – and what it has revealed hasn’t been great.
The cases have involved the abandonment of children born as a result of a surrogacy arrangement. In one recent matter, it was alleged that the intended parents abandoned the child because they couldn’t afford twins.
Unfortunately these recent changes are just one more aspect of the risks that you would be expected to consider if you were interested in international surrogacy, particularly if the country that you were going to has little to no laws about surrogacy.
We have always advocated to our clients that they should consider entering into a surrogacy arrangement here, in New South Wales. After all, altruistic surrogacy, subject to certain conditions of course, is not illegal in New South Wales. There is a set process and procedure, and the end result is that the child born from the surrogacy arrangement is legally recognised as the child of the intended parents.
We believe that this gives no better peace of mind.
We can help you with that process, and we can secure that peace of mind for you. Give us a call at 02 9687 8885 for more information.