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.
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.
Understanding the social and legal complexities of surrogacy
Some time ago, a client contemplating surrogacy said to me, “I dunno what’s the big deal. My sister knows we’ve wanted a kid for so long, so she’s gonna help us out.” I took a moment before responding, “Yes, but you realise it means that your sister’s gonna have your baby!”
Is there something wrong with that statement? In the context of an altruistic surrogacy, you would probably think not. After all, the sister is simply offering herself as a gestational incubator for her brother’s child. The child might be a combination of her brother and her sister-in-law’s genes or perhaps a donor one way or another, but it won’t be hers genetically (hopefully). At the end of the process, she’ll give birth to her niece or nephew. So what’s the problem with that statement? What was your first thought when you saw the title of this article?
Prologue
This article is largely an opinion and commentary piece. It’s not intended to provide legal information or legal advice, and should not be relied upon in any way – especially for legal research. I’ve just taken a moment to share some of my personal thoughts on the topic of surrogacy, and the challenges that I see for intended parents, surrogate or birth mothers, and children born through surrogacy. I also stress that I’m not offering any answers, in fact you may find that there could be more questions that arise from this article. I would be happy to receive your comments, after all that’s what makes a robust discussion on issues that must discussed in order to be advanced for the benefit of all concerned. Enjoy.
Where do babies come from?
It’s the question that all curious children eventually want to know, isn’t it?
For a very long time, sexual intercourse between a man and a woman, in one form or another was the only recognised way to achieve a pregnancy (except maybe for a single incident of immaculate conception, that is). It was the natural and biological result of that sexual act generation after generation. The human race has procreated throughout history by sexual reproduction and as a species, we depend on it to multiply and survive. So when a woman gives birth to a child, we assume that the woman has had sexual intercourse with a man, and that the man who had sexual intercourse with the woman is the father of the child. I think you’ll probably find that this assumption is wide spread across societies, communities and cultures all over the world – it follows what we all understand to be human biology, a natural science.
Given these preconditioned social assumptions, when reading the title of this article many of you would have first through ‘incest’, ‘taboo’, ‘scandal’ – or maybe not in those terms, but certainly there would have been a suggestion of it even if it wasn’t a conscious thought. But that’s a normal reaction, isn’t it? The statement, ‘my sister is having my baby’ immediately implies to most readers that the sister is pregnant with the brother’s child, which also implies that a brother and sister have had sexual intercourse resulting in conception. Of course, I intentionally chose that title to get your attention. But why did it get your attention? Maybe it’s because of the possible legal issues (incest is a criminal offence), or maybe it’s because of the social issues (it’s taboo, isn’t it?), or maybe is it because we all love a little scandal? If you had asked my client, he’d ask “… but what’s the big deal?”
Who’s your daddy? (and mummy?)
I think it’s fairly safe to say that today’s society does not accept (socially or legally) that a sister should have her brother’s child. Biologically, she can despite its various genetic dangers, but I suspect that the child and the parents of the child would be have difficulty being socially accepted by the wider community. That is of course, if we can only consider conception, pregnancy and parentage in the traditional sense.
The law as we know it reflects social and religious values, generally being conservative in nature, and it’s with those values that the law addresses the issue of paternity. There are a number of presumptions of paternity based on existing relationships between the mother and her partner or partners (also assumed to be male), while modern science also arms us with the ability to test for paternity through DNA sampling. Irrespective of the presumptions or tests for paternity, maternity has been widely accepted or assumed (biologically) to belong to the woman who gives birth to the child.
But today, the statement “the woman who gives birth to the child is the mother of the child” is not always the case. Our understanding of who is the father and who is the mother of a child is not what you might have learned from your parents or what you were taught in school. It’s all changed, especially in New South Wales with the introduction of laws recognising surrogacy, namely the Surrogacy Act 2010.
Where did the surrogacy laws come from?
A progressive society, especially a progressive society that recognises surrogacy arrangements or even same-sex parenthood (same-sex parenthood often being achieved through surrogacy, if not adoption), challenges the legal presumptions of paternity, the associated social expectations of identifying the father, and the biological understanding of who is the mother. Especially in a progressive society, social change generally precedes law reform, and in the case of surrogacy, medical advancements in assisted reproductive technologies preceded social change. While I assume artificial insemination has probably existed in all forms (some more crude than others) throughout history, in vitro fertilisation (IVF) has only been around since the late 1970s in humans after having been successfully tested in animals in the late 1950s. On the other hand, the laws dealing with IVF and other assisted reproductive technologies were only enacted in New South Wales in 2007 (Assisted Reproductive Technology Act 2007). Interestingly, other states such as South Australia and Western Australia had introduced similar legislation in 1988 and 1991 respectively, nearly 10 years before New South Wales.
As IVF has been with us for nearly half a generation, most people would not be shocked or appalled by the notion that sexual intercourse between a man and a woman is not the only way to conceive a child – or at least not as shocked as they were when they read the title of this article. With the growing understanding and acceptance of surrogacy, we also begin to recognise that a woman who gives birth to a child is not necessarily the mother of that child.
I’ve had the privilege of working in the area of surrogacy with would-be parents before the Surrogacy Act was introduced in New South Wales. Surrogacy as a medical/social process and procedure already existed before the laws did. IVF clinics were already assisting intended parents and their surrogate mothers to conceive and birth children. The medical technology existed, there was a level of social demand yet the laws before the Surrogacy Act failed to properly address the situation – potentially to the detriment of the intended parents, but especially at the disadvantage of any child born through surrogacy. Prior to the Surrogacy Act, children born through surrogacy had to be legally adopted by their intended parents even if they were the child’s biological parents.
I won’t say that the current surrogacy laws are the perfect legal solution to surrogacy arrangements – in fact, I believe there is still some way to go in terms of social and legal reform (but that’s a discussion for another time and another place). For now, consider that compared to other parents, who simply fill out the registry notification form at the hospital or birthing centre, intended parents (and the surrogate mother and her partner) to a surrogacy arrangement must still follow a legal process to be recognised as the legal parents through parentage order made by the Supreme Court. That’s a relatively long and costly exercise – but often, there is little alternative.
The future of parentage
I admit the concept of ‘coming from their mummy’s tummy’ is widely accepted with my young children and their peers. That’s considered ‘normal’ for young children, without necessarily labelling anything not that as abnormal. I recognise that there will come a time when my children will acknowledge that not every ‘kid in class’ came from their ‘mummy’s tummy’ (or even that they actually came from a ‘tummy’ at all). In the same way, I think most people acknowledge and accept orphans or children without parents, ‘illegitimate’ children or children ‘born out of wedlock’, children from single parent homes, adopted children or children of same-sex couples. Have I offended anyone by implying that these children are in any way not ‘normal’? Is the term ‘illegitimate’ children even politically correct at all these days? Before you start composing an angry reply to this article, take a moment to consider that perhaps 30-50 years ago (or certainly 100 years ago) there would have been real social and legal issues for some of those children – that would have been the reality of the times. Of course, not so today or at least not to the same degree even though the prejudice can still exist in some communities and cultures.
A progressive society doesn’t necessarily require wide spread acceptance and it doesn’t mean that pre-existing prejudices cease to exist. The very fact that most people who read the title of this article today probably make one assumption suggests that social acceptance still has some way to go, yet in another 30-50 years from now maybe that same assumption may no longer apply.
But yes, for now – we’re at the cutting edge of biotechnology and medical advancement, social acceptance is being tried and tested in all directions, and the law is slowly catching up with what is happening in the world around us. I have full respect for our clients who are going through surrogacy today. They’re really the pioneers in these largely uncharted waters. As lawyers, we only see a glimpse or a snapshot with a very limited scope of what intended parents (and their surrogate mothers) need to go through. I foresee some of the legal issues and can only imagine the kinds of social issues that children born through surrogacy will need to face as they come to terms with who they are and where they came from. The reassuring fact is that in time, it will only become easier and maybe there will come a time when we all say “Your sister is having your baby? It’s no big deal. It’s no big deal at all.”
Epilogue
For the most part, I’m traditional and conservative – whether that’s my cultural background or my Christian faith – and the opinions expressed in this article may be largely influenced by that as well. But I don’t judge anyone who has chosen this path. I have the utmost respect and admiration for their commitment and dedication to becoming a parent (and have a greater sense of appreciation and gratitude for my children as well).
Oh, and just in case you were wondering – I don’t have a sister.
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.
I’m going to take a guess as to why you’re reading this article right now. I think it’s because you’re interested in or curious about surrogacy and the legal aspects of surrogacy (if you’re after information on the medical aspects of surrogacy, then this is the wrong website and you’ll need to look elsewhere). You’re doing your research on surrogacy laws in New South Wales and as many people generally do these days you’re searching over the internet to find out more. That’s normal, and that’s largely the reason why I set up this website.
Our clients use this website as a resource to help give context to what we may inform them or advise them. The reality is that there’s only so much that we’re able to effectively communicate with our clients during any consultation. Our minds work in such a way that anyone attending a consultation will never take away 100% of what we might have discussed, and in fact most people only remember or recall a fraction of the necessary information. By also including some of that information in the form of articles on this website, this resource serves as a reminder or a reference tool to help our clients.
Even if we assume that communication is perfect and there is no loss of information (which of course is never the case) this website also provides another way to communicate the information related to the legal advice that we may provide regarding surrogacy. If you’re referring to this websites and the articles published here, then at least many of the points of discussion can be reviewed or researched further on this website (or others) in your own time. Having the information at your fingertips and on the screen right in front of you makes it easier to read and re-read if necessary until you have a clearer picture and are comfortable with the information – it just makes it more effective communication. It takes time, especially if the topic of discussion is not familiar to you.
So is surrogacy generally a topic familiar to most people? I think more and more people are beginning to understand what surrogacy is and what it means – especially what it means for intended parents or even the surrogate mother. They may not fully understand the legal framework or appreciate the social complexities, but those issues are still largely under review and constantly evolving even as I type.
The information that you may find on this website is not static – it is dynamic. In time, some posts appearing on this website may become out of date and expire their usefulness aside from being a reminder of how things used to be. This may happen sooner than later depending on how fast the law and the world develops. Just within the last few years, there have been many changes in the area of law regarding surrogacy. Many of those changes included reforms attempting to resolve some of the difficulties that intended parents or the surrogate mothers faced when trying to have their surrogacy arrangement recognised by the law even though it was recogised or accepted by them and others around them socially. Had I started this website back then, I may have been writing about other issues around surrogacy which would have been subsequently resolved by the introduction of the Surrogacy Act 2010.
Keep in mind that this is not the only information resource on the internet dealing with the legal issues and the law regarding surrogacy. There are many other websites dealing with the topic of surrogacy, and I encourage you to research widely. As I mentioned, this website largely grew from the demand from my clients and many of the articles here are based on the issues that they face (fuelling the inspiration and the topic of discussion).
Otherwise, aside from supporting and maintaining this website, my firm focuses on providing legal advice and representation when it comes to surrogacy, preparing or reviewing the surrogacy arrangement, providing independent advice on surrogacy to both intended parents or surrogate mothers and their partners, and applying for parentage orders. I have had a well established relationship with several IVF clinics who regularly include my firm details on their information pack to patients and prospective intended parents for my team of surrogacy lawyers to assist with the legal aspects of surrogacy.
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.
You’re here – visiting this website and reading this article – because at the end of a long (and probably stressful and tiring) process you’re now taking the first of many steps towards having children through surrogacy.
Whatever the reason for your journey and regardless of the path you’ve travelled so far – you’re here now. You’re here because you want to learn more about the legal framework of surrogacy, you want to understand the legal implications and consequences of having a child through surrogacy, and you need legal advice. Well, you’ve come to the right place.
Over the years, my team and I have provided surrogacy legal advice to many intended parents as well as surrogate mothers and their partners. We’ve help people navigate through the legal issues even before the surrogacy laws existed. Since then we’ve had the privilege to witness the introduction of laws in New South Wales, with the enactment of the Surrogacy Act 2010, to legally recognise surrogacy arrangements.
I’ve developed this website because I recognised that surrogacy arrangements are socially complex (today), which then gives rise to various legal issues. Some of the legal issues around surrogacy have been partly resolved by the introduction of and subsequent changes to surrogacy legislation, while others will require wider social acceptance and future legal reform. Unfortunately, there are always going to be some issues that will remain in contention or at least take several generations of social change. For some people, exploring options with international surrogacy arrangements adds another level of complexity, especially in terms of reconciling the different laws (and migration issues) of each country as well as dealing with different cultures and social norms.
I’m not claiming to be an expert on surrogacy matters, there’s enough lawyers, academics, legislators and social commentators (all with an opinion) who make that claim for themselves already. I just listen to the real-life stories from the community, from people just like you, and provide social and legal perspective and insight.
My hope that you can benefit from our experience, which is also built on the collective experiences of our clients going through surrogacy. You’ll find that other clients before you have had the same questions or encountered the same issues that you’re facing right now. We’re all not that different and you’re not alone.
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.
