What is a commercial surrogacy arrangement?

Section 9 of the Surrogacy Act

Section 9 of the Surrogacy Act provides that a surrogacy arrangement is a ‘commercial surrogacy arrangement’ if it involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person:

  • agreeing to enter into or entering into the surrogacy arrangement, or
  • giving up a child of the surrogacy arrangement to be raised by the intended parent or intended parents, or
  • consenting to the making of a parentage order in relation to a child of the surrogacy arrangement.

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 (s9(2)).

The penalty for entering into a commercial surrogacy arrangement is a maximum of 2,500 penalty units ($275,000), in the case of a corporation, or 1,000 penalty units ($110,000) or imprisonment for 2 years (or both), in any other case (s8).

This is the definition of a commercial surrogacy arrangement in New South Wales only. Other states and other countries around the world may have different definitions and if your surrogacy arrangement has some connection to that state or country be aware that you may also be subject to those laws as well.

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