Complete Guide to Surrogacy Laws in Australia: 2023 Update
Surrogacy is a beautiful and generous way of helping someone else achieve their family dream. But it can also be a complex and challenging process involving legal, medical, and emotional aspects.
Suppose you are considering surrogacy in Australia, either as an intended parent or a surrogate. In that case, you must be aware of the laws and regulations of your state or territory.
What is Surrogacy?
Surrogacy is an arrangement, often supported by a legal agreement, in which a woman (the surrogate mother) agrees to bear a child for another person or people who will become the child’s parent(s) after birth.
How Does Surrogacy Work?
Surrogacy is a process that involves many steps, and it can be a complex journey for both the intended parents and the surrogate mother.
Here is a general outline of how surrogacy works, although the specific steps can vary depending on local laws, the type of surrogacy, and the arrangements between the parties involved:
- Choosing a Surrogacy Path: The first step is to decide on the type of surrogacy arrangement: traditional surrogacy (where the surrogate is also the biological mother of the child) or gestational surrogacy (where the surrogate carries a child that is not genetically related to her).
- Finding a Surrogate: Next, the intended parents must find a suitable surrogate. This can be done through surrogacy agencies, personal connections, or independent searches. It’s important that the surrogate meets specific health and lifestyle requirements and is fully informed about the surrogacy process.
- Screening and Legal Agreements: Once a potential surrogate is found, she must undergo a thorough screening process, often including medical and psychological evaluations. Legal contracts must be drawn up and agreed upon, outlining each party’s rights, roles, responsibilities, and financial arrangements.
- Fertility Treatments: Depending on the type of surrogacy, the next step is either artificial insemination (for traditional surrogacy) or in vitro fertilisation (for gestational surrogacy).
- Pregnancy and Delivery: The surrogate carries the pregnancy to term and gives birth to the child. Prenatal care, monitoring, and the birthing process are coordinated based on the agreed-upon plan.
- After Birth: Legal procedures may be necessary to ensure the intended parents are legally recognised as the child’s parents. The child is then given to the intended parents, and post-birth follow-ups may occur to ensure the well-being of the surrogate and the new family.
What are the Two Types of Surrogacy?
Surrogacy arrangements generally fall into two main categories: Traditional Surrogacy and Gestational Surrogacy.
Traditional Surrogacy: In conventional surrogacy, the surrogate mother is also the child’s biological mother. Her egg is fertilised, often via artificial insemination, with sperm from the intended father or a sperm donor.
As such, the surrogate is genetically related to the baby. This form of surrogacy is less common today, primarily because of the potential legal and emotional complications of the surrogate being the baby’s biological mother.
Gestational Surrogacy: In gestational surrogacy, the surrogate, often referred to as a gestational carrier, is not biologically related to the child.
The embryo is created through in vitro fertilisation (IVF) using the eggs and sperm of the intended parents or donors and then transferred to the surrogate’s uterus. Gestational surrogacy is the most common type of surrogacy arrangement today.
Both types of surrogacy can also be categorised based on the compensation involved:
Commercial Surrogacy: In a commercial surrogacy arrangement, the surrogate receives a fee beyond reimbursement for medical and other reasonable expenses. The legality of commercial surrogacy varies widely around the world.
Altruistic Surrogacy: In an altruistic surrogacy, the surrogate is not paid a fee or only receives reimbursement for medical and other reasonable expenses. Many places that allow surrogacy restrict it to this type.
What are the Surrogacy Laws in Australia?
Surrogacy laws in Australia vary from each estate and territory. Here is a brief overview:
|State/Territory||Relevant Legislation||Minimum Age Requirement||Same-sex Couples||Must be permanent residents||Can Advertise?||Surrogates must have a child of their own already||Parentage Orders|
|New South Wales||Surrogacy Act 2010||25 (for surrogates)||Yes||No||Unpaid only||No||Available|
|Queensland||Surrogacy Act 2010||25 (for surrogates)||Yes||Yes||No||No||Available|
|Victoria||Assisted Reproductive Treatment Act 2008; Status of Children Act 1974||25 (for surrogates)||Yes||No||No||Yes||Available|
|South Australia||Family Relationships Act 1975||18 (for surrogates), 25 (for intended parents)||Yes||Yes||Yes||No||Available|
|Western Australia||Surrogacy Act 2008||25 (for surrogates)||No||No||Yes||No||Available|
|Tasmania||Surrogacy Act 2012||25 (for surrogates)||Yes||Yes||No||Yes||Available|
|Northern Territory||Surrogacy Act 2022||25 (for surrogates)||Yes||Yes||Yes||No||N/A|
|Australian Capital Territory||Parentage Act 2004||25 (for surrogates)||Yes||No||No||Yes||Available|
What are the Requirements for Surrogacy to be Approved?
Surrogacy in Australia is governed by state and territory laws, and the specific requirements for approval of surrogacy can vary. However, there are some commonalities across jurisdictions:
Altruistic Surrogacy: Only altruistic surrogacy is legal across Australia, which means that the surrogate mother can only be reimbursed for out-of-pocket expenses related to the surrogacy. Commercial surrogacy, where the surrogate mother is paid a fee beyond these expenses, is illegal.
Age Requirements: The surrogate and the intended parents typically must be at least 25 years old, although the specific age requirement can vary by jurisdiction.
Medical Need: In some states, intended parents must demonstrate a medical need for surrogacy, meaning they cannot conceive or carry a pregnancy term for medical reasons.
Counselling and Legal Advice: Both the surrogate mother and the intended parents are typically required to receive independent counselling and legal advice before entering into a surrogacy arrangement. This ensures all parties fully understand surrogacy’s implications, requirements, and potential risks.
Surrogacy Agreement: While surrogacy agreements are not enforceable by law, they are often required as part of the approval process. These agreements outline each party’s rights, roles, responsibilities, and any agreed-upon expenses to be reimbursed.
Parentage Orders: After the child’s birth, the intended parents must apply to a court for a parentage order to transfer legal parentage from the surrogate (and her partner, if applicable) to themselves.
Courts typically require evidence that all parties consent to the order, that the surrogacy agreement was made before the child was conceived, and that the order serves the child’s best interests.
How Do International Surrogacy Arrangements Work in Australia?
International surrogacy is an arrangement where the intended parents and the surrogate mother live in different countries. The intended parents typically travel to the surrogate mother’s country for the embryo transfer and again for the child’s birth.
The legal aspects of international surrogacy for Australian residents are complex and potentially risky due to the differences in surrogacy laws across countries and states within Australia.
Legality and Restrictions:
Commercial surrogacy (where the surrogate is paid a fee beyond medical and other reasonable expenses) is illegal in all Australian states and territories.
Some jurisdictions, such as New South Wales, Queensland, and the Australian Capital Territory, also have laws making it illegal for residents to enter into a commercial surrogacy arrangement overseas. Breaches of these laws can result in fines or imprisonment.
Parentage Orders and Citizenship:
Even if an international surrogacy arrangement is lawful, Australian intended parents face further legal challenges when they return home with the child.
In most cases, the surrogate mother is recognised as the child’s legal mother in Australia, regardless of any overseas court orders or birth certificates naming the intended parents.
The intended parents must apply to an Australian court for a parentage order to transfer legal parentage from the surrogate to themselves. Still, the criteria for obtaining such orders can take time to meet in the case of international surrogacy.
Regarding citizenship, children born through surrogacy arrangements overseas can acquire Australian citizenship if at least one of the intended parents is an Australian citizen.
However, the process can be complex and time-consuming and may require evidence that the child’s surrogate mother (or egg donor, if applicable) has relinquished all parental rights.
Ethical and Practical Considerations:
There are also ethical issues and practical considerations associated with international surrogacy.
These include concerns about the potential exploitation of surrogate mothers in low-income countries, risks related to different healthcare standards and legal protections in the surrogate’s country, and the possibility of statelessness or legal limbo for the child if the surrogacy arrangement or citizenship application is not recognised.
Want to Know More about the Surrogacy Laws in Australia?
Justice Family Lawyers can guide you through this complex legal terrain, ensuring you fully understand your rights and obligations.
We provide transparent, compassionate advice tailored to your unique circumstances. Reach out to us today to start your surrogacy journey with confidence and peace of mind.
Don’t leave your family’s future to chance; trust the experts at Justice Family Lawyers.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.