Surrogacy Laws in Australia

A surrogate is a person who is appointed to act in place of another. A surrogate parent is a person who carries a foetus on behalf of another person, usually because the other person is unable or unwilling to bear a child themselves. This may be because of their other commitments or because they are infertile or because going through a pregnancy would be risky for them because of their medical history. Surrogacy laws vary between different states and territories. This article outlines the surrogacy laws of each jurisdiction.

The surrogacy process

Surrogacy usually begins when a fertilised embryo is inseminated into a healthy surrogate mother or ‘gestational carrier.’ This has become a common and low-risk procedure. It is unusual for a surrogate mother to have sex with the male parent. However, sometimes both the egg and sperm are from a couple which, for their own reasons, want a third person to carry their baby. It is most common for the egg to either be donated or from the birth surrogate. There is a range of conflicting law on surrogacy in different Australia jurisdictions. A person can use a surrogate parent as per a personal contract between the parties that does not involve payment or the surrogacy can be a commercial arrangement between the parties.

WA surrogacy laws

• The surrogate mother must be aged at least 25 and have previously given birth to a child;
• The agreement must be written and signed by all parties;
• All parties have had legal advice and counselling;
• The parties must be medically assessed as suitable to be parents to a child born to a surrogate;
• The agreement must be approved by the Reproductive Technology Council; The agreement must be in place prior to the surrogate becoming pregnant.

ACT surrogacy laws

In the ACT, a non-commercial surrogacy arrangement may be entered into if:

• The intended parents are at least 25 years old;
• The surrogate is at least 18 years old;
• The intended parents are ACT residents
• The intended parents are a couple.

Any payment made to a surrogate under an ACT agreement must only be to reimburse the surrogate for expenses connected to the pregnancy. It is illegal for the intended parents to advertise for a surrogate or for persons to advertise their desire to act as surrogates.

NSW surrogacy laws

In New South Wales, surrogacy arrangements are set out in the Surrogacy Act 2010. A surrogacy arrangement may be entered into if:

• The intended parents are at least 25 years old and are residents of New South Wales;
• The surrogate is at least 25 years old.

The arrangement must not be commercial and payment may only be made to cover the expenses related to the pregnancy. Surrogacies must be gestational only, meaning the surrogate must not be genetically related to the child.

Intended parents and surrogates are permitted to advertise so long as they have not paid a fee for the advertising.

Queensland surrogacy laws

In Queensland, surrogacy arrangements are governed by the Surrogacy Act 2010. A person may enter into a surrogacy agreement if:

• The intended parents, the surrogate and their partner are at least 25 years old;
• The intended parents are residents of Queensland;
• All parties have had legal advice and counselling.

Arrangements must not be commercial and only gestational surrogacy is permitted.

SA surrogacy laws

In South Australia, surrogacy laws are set out in the Family Relationships Act 1975. A person may enter into a surrogacy agreement if:

• The intended parents, surrogate and their partner are at least 18 years old;
• The intended parents are South Australia residents;
• All parties have had legal advice and counselling;
• The intended mother is or appears infertile or there is a serious risk of genetic defect, disease or illness being passed to the child if the inteded mother were to be personally pregnant;
• At least one of the intended parents must be genetically related to the child unless both parents are unable to conceive with their own genetic material;
• The arrangement is in writing, signed and certified by a lawyer.

The arrangement must be non-commercial, However, there is no law against advertising.

Tasmanian surrogacy laws

In Tasmania, surrogacy arrangements are set out in the Surrogacy Act 2012. A person may enter into a surrogacy arrangement if:

• The intended parents are at least 21 years old;
• The surrogate is at least 25 years old;
• The surrogate has given birth to at least one living child;
• All parties are residents of Tasmania.
• All parties have had legal advice and counselling.
• The agreement is in writing and signed by both parties.
• There is a medical or social need for the surrogacy arrangement.

The arrangement must be non-commercial and only gestational surrogacy is permitted.

Victorian surrogacy laws

In Victoria, surrogacy laws are governed by the Assisted Reproductive Treatment Act 2008. A person may enter into a surrogacy agreement if:

• The intended parents are at least 18 years old;
• The surrogate is at least 25 years old;
• The intended parents are residents of Victoria;
• The surrogate has previously birthed a child ;
• The Patient Review Panel is satisfied that the intended mother is unlikely to become pregnant or the life of the baby or the mother would be at risk if she were to carry the pregnancy; that the surrogate is not genetically related to the child and that all parties have received counselling.

The arrangement must be non-commercial and parties must not advertise.

Northern Territory

The Northern Territory does not have any legislation on surrogacy. This means that persons may enter into commercial or non-commercial surrogacy arrangements in the NT and such arrangements are not regulated.

Parentage Orders

After parties have followed the applicable process for entering into a surrogacy agreement in their state or territory, they may apply for a Parentage Order. The effect of a Parentage Order is that the arranged parents will be treated as the child’s parents permanently. The process for seeking a Parentage Order differs from state to state.

Commercial surrogacy or altruistic surrogacy?

The law recognises that there is a difference between surrogacy done for profit and surrogacy where there is no profit motive.

Altruistic surrogacy occurs when a woman agrees to carry and surrender a child to another person and will not receive any payment other than the expenses associated with the pregnancy and delivery of the baby. Surrogacy in this form is not a criminal offence in Australia and is fairly common. However, in South Australia and Western Australia, altruistic surrogacy is not available to single people or same-sex couples.

Commercial surrogacy occurs when a person receives payment for carrying and surrendering a baby to another person or persons. It is unlawful in all Australian jurisdictions except the Northern Territory, where there is no legislation. International commercial surrogacy occurs when a surrogate in another country is arranged and paid for through an agency. In Queensland, New South Wales and the ACT, it is a criminal offence to use international commercial surrogacy. This is because commercial surrogacy is generally seen as exploitative, particularly when it involves disadvantaged women. However, proponents of commercial surrogacy argue that when an informed decision is made to carry and surrender a child for a fee, the arrangement is unlikely to be harmful to the surrogate mother or to the child.

Disputes arising out of surrogacy agreements

If a birth mother refuses to surrender a baby to the arranged parents, the arranged parents’ only recourse is to apply to the Federal Circuit Court or Family Court for a Parenting Order. This is a complex situation, especially where the birth mother has bonded with the child and is capable of rearing the child.

A parenting order may stipulate who the child is to live with, who has parental responsibility for the child and other matters relating to the welfare of the child. The orders will be made based on what is in the child’s best interests.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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