“Altruistic”, stemming from the noun “altruism” is defined as “unselfishly concerned for or devoted to the welfare of other”. The definition of the term “altruism” or its adjective form “altruistic” is important in the context of surrogacy in Australia because it is the bedrock upon which our surrogacy laws are based on. Indeed, section 23 of the Surrogacy Act 2010 (NSW) States that “surrogacy arrangement must be altruistic” and this is a precondition to the Court granting an application for parentage order.
So, how exactly does the concept of “altruism” fit in with surrogacy?
In a nutshell, it means that surrogacy in Australia can only proceed on the basis of selflessness by the surrogate mother. There can be no other benefit to the surrogate mother in committing to this process other than the sole concern for the well-being of the Intended Parents. The surrogate mother receives no further compensation for her role, there is no commercial benefit to the surrogate and it is not, what the legislation calls a “commercial surrogacy arrangement”.
Commercial surrogacy is defined in section 9 of the Surrogacy Act 2010 (NSW) which is as follows:
(1) For the purposes of this Act, a surrogacy arrangement is a commercial surrogacy arrangement if the arrangement involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person: (a) agreeing to enter into or entering into the surrogacy arrangement, or (b) giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or (c) consenting to the making of a parentage order in relation to a child of the surrogacy arrangement. (2) However, a surrogacy arrangement is not a commercial surrogacy arrangement if the only fee, reward or other material benefit or advantage provided for is the reimbursement of a birth mother’s surrogacy costs.
While surrogacy laws are continue to evolve, this foundational aspect of altruistic surrogacy has remained. We could opine and debate at length about the direction of surrogacy in Australia but for the time being, these are the boundaries within which we operate. We continue to assist both Intended Parents as well as Surrogates through this labour of love and if you find yourself stepping into one of these roles, or planning to do so, please get in touch, it would be our pleasure to walk this journey with you.
Surrogacy Enquiry
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.
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.
Prior Pregnancies
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.
Surrogacy Enquiry
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.
What next?
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.
ErnPhang Director
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.
Does the media attention on international surrogacy change things?
You haven’t heard from me for a while, and there’s a good reason for that.
Over the last month or two, we’ve been inundated with calls (especially from journalists) looking for commentary and opinions on the legality of international surrogacy. Coincidentally, the last article that I wrote addressed the issue of international surrogacy out of India. Naturally, that article and this website attracted attention from anyone wanting to know more about the legal issues surrounding ‘Baby Gammy’ from Thailand and international surrogacy (especially commercial surrogacy) in general.
If you don’t know what that case is/was about, you’ll find enough information on the internet – so I won’t repeat it here. Suffice to say, while those issues are still ongoing for the parties involved, the government, and interest grounds – it appears the media hype has largely subsided and ‘life is back to normal’.
At that the time, I was approached for comments for news, radio and television segments. But I declined all requests – and I haven’t written further posts, not until now.
The prospect of being on television or radio always sounds exciting, but it was difficult to see how that exercise would benefit my clients – without drawing unnecessary attention to their individual challenges. The highly political and emotionally charged topic of surrogacy can be controversial. There’s always going to be opposing views across the community, and I don’t think it’s necessarily a public debate that we should be involved in.
My team and I are solely dedicated to our clients regardless of whether they need legal advice and representation for altruistic surrogacy in New South Wales, or are considering embarking on possibly international surrogacy. We don’t judge. We just advise.
We also don’t promote ourselves as having any more ‘expertise’ in surrogacy matters than our professional colleagues nor do we have any specific authority or right to tell others what they can or can’t do – certainly not that conceited or arrogant. Instead, I really see our role as being solely to help our clients – and that’s it.
Our professional advice is based on knowledge and experience. We offer that advice to our clients so that they can achieve their goals and intended outcomes – which is namely to have a child through surrogacy. We also help our clients navigate the minefield of social and legal issues and reform, much of which is likely to play a bigger part now given the increased public awareness surrounding international commercial surrogacy.
Truth be told, the issues regarding international commercial surrogacy are nothing new. The recent media attention only brought these issues to the forefront of people’s minds and into the public debate. Otherwise, for Australians, travelling overseas for surrogacy (and a range of other medical procedures) has always been an attractive alternative, especially due to the lower relative cost in those countries and if they had no potential surrogate in Australia.
As I have told the journalists, this office receives a large number of enquiries from intended parents and surrogate mothers because that’s the area in which we work. A large percentage of those enquiries also deal with the issue of international surrogacy, and sometimes those enquiries include questions around international commercial surrogacy (part of which I’ve already written about in previous articles).
So what does all of this mean? It obviously means there’s a demand for international surrogacy and there’s a potential demand for international commercial surrogacy. I would probably venture to say that ever since it’s been possible (medically/technologically) it’s been happening, especially in developing countries where there’s the increased likelihood of exploitation of women – which is the whole reason for criminalising commercial surrogacy in New South Wales in the first place.
Also, I’m sure that within all the cases of international surrogacy arrangements (commercial and altruistic) there have been cases similar to ‘Baby Gammy’, where there has been a dispute or disagreement between the intended parents and the surrogate or birth mother (or her family). I presume most of those cases have been resolved in some way or another without attracting widespread attention.
The case of ‘Baby Gammy’ has been a little unusual probably because of the surrogate mother’s ability and willingness to draw the attention of the national and international media. But I might address this further in another article on another day.
What next?
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.
ErnPhang Director
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 history of surrogacy goes back farther than you think – infertility after all, is something that has happened to people since ancient times. The most well-known example of surrogacy is the Biblical story of Sarah and Abraham. This form of surrogacy is known as “traditional surrogacy” – where the surrogate, or birth mother, is the child’s genetic mother.
In a traditional surrogacy, the child is conceived (usually) via artificial insemination, at home or at a fertility clinic. Despite this form of surrogacy being around for a long time, it’s still frowned upon and there are few women who wish to get involved in this type of surrogacy as at the end of the day, they are biologicaly related to the child. Some people fear that there is a high chance that the surrogate or birth mother might form an emotional connection with the child, which is undesirable. To compound this issue, there are some fertility clinics in NSW which will refuse to perform traditional surrogacy.
As a result, almost every modern surrogacy procedure undertaken these days are ones where a fertilised egg, having no genetic material related to the surrogate or birth mother, is transferred to the uterus of the surrogate or birth mother. This is considered less emotionally draining or risky as the child is not biologically related to the surrogate or birth mother. If the intended parents can no longer produce eggs or sperm, the egg or sperm used for the procedure must be donated. It’s because of this that this process always takes place in a clean, clinical environment. This type of surrogacy is known as “gestational surrogacy”.
If you have any questions about the legal aspects of this process, give us a call – we’ll try to help you out if we can.
