Is Surrogacy Legal in Australia?

Although the overarching principle of permitting only altruistic surrogacy applies nationwide, each Australian state and territory has its own specific rules and requirements. These include differences in who can be an intended parent, the necessary documentation, and the legal processes involved.

Surrogacy in Australia is tightly regulated to ensure ethical practices, protect the rights of all parties, and uphold the welfare of any children born through the process.

Consulting with legal family lawyers can help you navigate these laws and ensure compliance with your state’s regulations. But for a quick overview, below we’ve provided some information about the core principles of Australian surrogacy laws:

1. Altruistic surrogacy only: Across Australia, surrogacy must be altruistic. Surrogates can only be reimbursed for reasonable expenses, such as medical costs or loss of income during the pregnancy. Payments beyond these expenses are illegal.
2. Independent legal advice: Both the surrogate and the intended parents must seek independent legal advice before entering into a surrogacy agreement. This ensures that everyone fully understands their rights and responsibilities.
3. Surrogacy agreement requirements: While not enforceable in all states, a formal surrogacy agreement is often required. This document outlines the terms of the arrangement, including expectations, roles, and reimbursement of expenses.
4. Parental rights and parentage orders: The surrogate is considered the child’s legal mother at birth. A parentage order is necessary to transfer legal parentage to the intended parents, ensuring their rights are recognised and recorded on the child’s birth certificate and child custody matters can be avoided.

Australian surrogacy laws have been designed to protect the rights of both the surrogate and the intended parents.

While the core principles of surrogacy in Australia, such as the legality of altruistic surrogacy, apply nationwide, the specific laws and requirements vary across states and territories. Below is a breakdown of surrogacy laws in each jurisdiction.

New South Wales (NSW)

• Legal framework: Governed by the Surrogacy Act 2010 (NSW).
• Eligibility for intended parents: Must demonstrate medical or social infertility.
• Parentage orders: Can be granted by the court if the arrangement meets all legal requirements, including counselling and a written surrogacy agreement.
• Key point: Commercial surrogacy is illegal, including overseas arrangements.

Victoria

• Legal framework: Regulated under the Assisted Reproductive Treatment Act 2008.
• Eligibility for intended parents: Must show infertility or risk of genetic disorders. Same-sex couples and single individuals are eligible.
• Surrogate requirements: Must have previously given birth.
• Parentage orders: Apply to the County Court for legal parentage transfer.

Queensland

• Legal framework: Managed under the Surrogacy Act 2010 (QLD).
• Eligibility for intended parents: Available to individuals or couples, regardless of gender or marital status.
• Key point: Surrogates cannot profit from the arrangement, with reimbursements limited to medical expenses and other reasonable costs.

South Australia

• Legal framework: Governed by the Family Relationships Act 1975 (SA).
• Eligibility: Intended parents must be married, in a de facto relationship, or single women with infertility issues.
• Key point: Approval from the Minister for Families and Communities is required for the surrogacy agreement.

Western Australia

• Legal framework: Covered under the Surrogacy Act 2008 (WA).
• Eligibility: Restricted to heterosexual couples and single women facing infertility.
• Surrogate requirements: Must be at least 25 years old and have previously given birth.

Tasmania

• Legal framework: Governed by the Surrogacy Act 2012 (Tas).
• Eligibility: Intended parents must meet criteria for infertility or inability to carry a pregnancy.
• Parentage orders: Granted through the Tasmanian Supreme Court.

Australian Capital Territory (ACT)

• Legal framework: Regulated under the Parentage Act 2004 (ACT).
• Eligibility: Includes single individuals, married couples, and de facto partners.
• Parentage orders: Apply through the ACT Magistrates Court.

Northern Territory

• Key point: No specific surrogacy laws exist in the NT. Couples must rely on federal family law principles for recognition of arrangements and parentage orders.

Understanding the differences in surrogacy laws across states and territories is crucial for ensuring compliance and a smooth process. We recommend discussing your situation with a family lawyer (like us) familiar with the surrogacy laws in your region can help you navigate these variations.

The legal process for surrogacy in Australia involves specific steps to ensure everything is done ethically and within the law. Both intended parents and the surrogate mother must follow certain requirements before and after the child is born.

Pre-surrogacy requirements

Before the surrogacy journey begins, a formal surrogacy agreement must be created. While not enforceable in all states, this document outlines the expectations and responsibilities of both the surrogate and the intended parents.

Both parties must attend counselling to discuss the emotional and legal implications of the arrangement and obtain independent legal advice to ensure everyone fully understands their rights. Medical assessments are also essential to confirm that the surrogate is physically and mentally prepared for the pregnancy.

Post-surrogacy legalities

After the baby is born, legal steps are required to transfer parental rights to the intended parents. This is done through a parentage order, which legally recognises the intended parents as the child’s guardians. The surrogate is listed as the birth mother on the birth certificate, but this is updated once the parentage order is granted. The process involves court applications, additional counselling sessions, and, in some cases, a hearing to finalise the arrangement.

By following these steps, everyone involved in the surrogacy process can feel confident that the arrangement is ethical, fair, and legally binding.