Family & Relationship Law 14 February 2024

Is surrogacy legal in Australia?

Surrogacy is legal in all Australian states and territories, but must be altruistic – meaning that the surrogate mother is not paid or placed in a better position than before the surrogacy arrangement. Commercial surrogacy, where the surrogate mother is paid, is illegal in all of Australia.

There are many reasons that Australians turn to surrogacy in order to start a family, these include the fact that they may not be able to physically bear a child themselves, or have found that adoption is significantly more restrictive and regulated. In this article, we cover all the legal ins and outs of surrogacy laws in Australia, and what you need to know before embarking on the exciting journey of starting a family through surrogacy.

What is a surrogate parent?

A surrogate parent is a person who carries an embryo to full term on behalf of another person/s. This may be because the person wanting to start a family (the intended parent/s) is infertile or because undergoing a pregnancy may put them and the baby at risk due to an existing medical condition. Before we explore the laws behind surrogacy, it is important to cover the types of surrogacy.

Types of surrogacy

There are two types of surrogacy –

Traditional surrogacy

Here, the surrogate mother uses her own eggs to conceive with sperm from an intended father or donor sperm.

Gestational surrogacy

Here, the embryo which was transferred to the uterus of the surrogate mother uses gametes from the intended parents where available. There might also be use of donor oocytes or donor sperm from a third party.

Each State and Territory have their own laws regarding surrogacy arrangements. In Victoria, IVF Clinics are not allowed to carry out traditional surrogacy treatments.

Commercial and altruistic surrogacy

There are two approaches to surrogacy. As mentioned, commercial surrogacy, where a surrogate mother is paid to carry a child, is illegal in Australia. The surrogacy process where a mother is not paid is called altruistic surrogacy.

Altruistic surrogacy is defined as the process of a woman carrying and bearing a child and then surrendering that child to another person. The surrogate mother will not receive any payment other than the expenses associated with the pregnancy and delivery of the baby. For many Australian families, altruistic surrogacy is the process used to start a family.

We have established that altruistic surrogacy is legal in Australia. However, there are many requirements that both parties need to adhere to, in order for a surrogacy application to be approved. Let’s look at the surrogacy laws specific to Victoria –

Surrogacy Laws in Victoria

Surrogacy laws vary between different states and territories. In Victoria, surrogacy laws are governed by the Assisted Reproductive Treatment Act 2008.

These laws state that a person may enter into a surrogacy agreement if:

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

The Patient Review Panel

For a surrogacy arrangement to be legal and approved, it needs to go through the Patient Review Panel. Their role is to consider, and potentially approve, all applications relating to surrogacy in Victoria.

The Surrogacy Process

Now that we understand the legal requirements, let’s take a brief look at the surrogacy process in Australia. This process was set out by The Fertility Society of Australia and New Zealand, who offer a comprehensive guide to surrogacy. Here is the process in six simplified steps in Victoria –

  • Find a surrogate

It is recommended that you reach out to family or friends, or seek a surrogate online through surrogacy support groups or online forums. Note, it t is illegal to advertise for a surrogate or to be one.

  • Qualify for surrogacy in your jurisdiction

This typically means that a fertility specialist will recommend surrogacy for an individual case.

  • Undergo a medical assessment

The surrogate and intended parents meet with a fertility specialist for a medical examination.

In some jurisdictions, everyone involved will need to undergo a psychological assessment.

  • Receive counselling and legal advice

Everyone involved (intended parents and surrogate) should receive counselling (joint and separate sessions) and get independent legal advice about the consequences of entering into a surrogacy arrangement.

  • Approval of the surrogacy arrangements

The surrogacy arrangement is approved by the Patient Review Panel and Artificial Reproductive Treatment (ART) process can begin.

  • Undertake the ART process

The treatments procedure with a registered ART Provider.

  • Apply for a Substitute Parentage Order

Once the children is born, the intended parent/s apply to transfer the legal parentage from the surrogate to the intended parent/s (ie change the child’s Birth Certificate).

More information about Surrogacy in Victoria can be found here.

Starting your family

Complex laws shouldn’t get in the way of the excitement of having a baby. Now that you understand the legal side of surrogacy a bit better, you’re one step closer to getting the process started. Before you do, it’s always a good idea to seek the guidance of a legal professional. the Family and Relationship Law team provides tailored advice and representation in any surrogacy related arrangements and Substitute Parentage Orders in the County Court of Victoria (and if needed in the Federal Circuit and Family Court of Australia for parenting orders).

Read more about Surrogacy and Fertility Law or simply get in touch with a member of our Surrogacy and Fertility Law team who will be able to provide you with everything you need. Our goal is to ensure that the legal side is taken care of, so you can focus on what really matters – starting your family.

Bonnie Phillips.
Bonnie Phillips Principal Lawyer Head of Family & Relationship Law View profile
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