Surrogacy

About surrogacy

Surrogacy is where a woman (the surrogate or birth mother) agrees to try to have a baby for another person or a couple (the intended parents).

In Australia, surrogacy is legal where the surrogate doesn’t make a profit from the arrangement. This is known as altruistic surrogacy.

Commercial surrogacy is against the law. It is illegal to:

• pay a woman to be a surrogate
• advertise for a surrogate
• offer surrogacy services
• facilitate a surrogacy agreement.

Surrogacy, which is privately arranged with no fees or advertising, is not against the law.

For more information, see Surrogacy in Australia on the Australian Government website.

Advertising for surrogacy

It is illegal:

• to advertise that you are looking for a surrogate
• for companies to advertise that they can arrange a commercial surrogacy agreement
• to advertise that you are willing to be a surrogate or that you are willing to accept any benefit for being a surrogate under an agreement.

Penalties for companies and individuals apply which could include a fine and/or imprisonment.

Surrogacy agreement

A surrogacy agreement is a legal contract between the surrogate, and her partner, and the intended parents of the child that sets out the terms of the surrogacy.

There are two types of surrogacy agreements:

• pre-conception surrogacy agreement, and
• post-conception surrogacy agreement.

Under a pre-conception surrogacy agreement, a woman agrees to become, or try to become, pregnant for another person or a couple. Under a post-conception surrogacy agreement, a pregnant woman agrees that the parentage of the unborn baby will be transferred to another person or a couple.

The law provides a legal process for transferring legal parentage of a child from a surrogate, and her partner, to the intended parents where the parties entered into a pre-conception surrogacy agreement. Where the legal requirements are met, a court can make a parentage order that the child becomes a child of the intended parents, and they become the child’s legal parents.

For the court to make a parentage order, a surrogacy agreement must be in writing, signed by the surrogate, and their page, and the intended parents. Before signing the agreement, all parties must have received:

• counselling from a qualified counsellor about the agreement and its social and psychological consequences
• legal advice about the agreement and its consequences.

The surrogate, and her partner, and the intended parents must receive legal advice from two independent lawyers.

The surrogate and the intended parents must all be at least 18 years old when they enter into the surrogacy agreement.

A surrogacy agreement is not enforceable. However, the obligation to pay or reimburse the surrogates costs under a pre-conception surrogacy agreement is enforceable. 

Surrogates costs

A surrogate can legally be paid for their reasonable costs relating to:

• becoming pregnant or trying to become pregnant
• the pregnancy
• giving birth
• entering into, and giving effect to, a surrogacy agreement.

Costs are reasonable if they are actually incurred, and the amount can be confirmed by receipts or other documentation.

Costs of becoming pregnant

The costs of becoming, or trying to become, pregnant include medical treatment, travel and accommodation expenses.

Costs of pregnancy and birth

The costs of pregnancy and birth include:

• medical costs associated with the pregnancy or birth, both pre-natal and post-natal
• travel and accommodation expenses
• any health, disability or life insurance premium that the surrogate would not have obtained if they hadn’t entered into the surrogacy arrangement
• any reasonable costs, including medical costs, for the child
• loss of income for unpaid leave for:
  • no more than two months when the birth happened, or was expected to happen
  • any period during the pregnancy when the surrogate was unable to work because of medical issues related to the pregnancy or birth.

Costs of surrogacy agreement

The costs of entering into, and giving effect to, a surrogacy agreement include:

• counselling for the surrogate, and their partner, before or after entering into the agreement
• legal advice for the surrogate, and their partner, about the surrogacy agreement or a parenting order relating to the agreement
• costs of the surrogate being a party to parenting proceedings, including travel and accommodation expenses.

Before signing a surrogacy agreement, you should get legal advice.

Legal parents

When the child is born, the surrogate, and her partner, are presumed to be the legal parents of the child. This is the case even if the child is not the biological child of the surrogate or her partner. The intended parents are not the legal parents of the child and don’t have parental responsibility for the child.

There are three ways the intended parents can apply to become the legal parents to a child born from surrogacy:

1. applying to the Supreme Court of NSW for a parentage order under the Surrogacy Act 2010 (NSW) - this order transfers the parentage of the surrogate to the person who has the child
2. going through the adoption process - this involves applying to the Supreme Court and, in some cases, the Federal Circuit and Family Court of Australia
3. applying for parenting orders. Parenting Orders can give you parental responsibility, which would make you legally responsible for the child.

Overseas surrogacy

International surrogacy is where a surrogate who lives overseas agrees to have a child for a person or couple who live in Australia. International surrogacy is covered by both Australian law and the laws of the country in which the surrogacy takes place. Before you decide to enter into an overseas surrogacy agreement, you need to get legal advice about surrogacy laws in Australia and the foreign country where the surrogate lives.

It is illegal for a person who is a resident or normally lives in NSW to advertise for, or enter into, a commercial (for money) surrogacy agreement overseas. There are penalties for engaging in overseas surrogacy agreements, including fines and imprisonment.

It is important that you follow all of the relevant surrogacy laws. If you do, you may not be legally recognised as the child’s parents. Instead, the surrogate may be considered the parent of the child.

There is also the risk that you may be stopped from bringing your child back to Australia until any legal issues are resolved.

You will need to arrange for your child to obtain citizenship or a visa and a passport before you can bring them back to Australia.

For more information, see Going overseas for international surrogacy on the Smartraveller website.