Family & Relationship Law 27 October 2021

Surrogacy in Australia

With the advancement of technology, more couples and individuals are considering surrogacy as a way to start or grow their families.

Surrogacy involves a female surrogate carrying an embryo to full term on behalf of the intended parent or parents if they are unable to have children.

There are two types of surrogacy arrangements:

  • Gestational surrogacy is the most common where the surrogate is implanted with an embryo (made up of an egg of a donor or the intended parent and sperm from a donor or intended parent).
  • Traditional surrogacy is where the surrogacy donates her eggs to conceive with sperm from a donor or the intended father.

Each State and Territory have their own laws around surrogacy and the requirements. Currently in Victoria, Assisted Reproductive Treatment (“ART”)/ In Vitro Fertilisation (“IVF”) Clinics are not allowed to carry out treatments for traditional surrogacy.

Surrogacy can be a complex process but with the right planning and information, it is a happy and great way to grow a family.

Altruistic and non-commercial surrogacy

In Victoria, the Assisted Reproductive Act 2008 (Vic) (“ART Act”) regulates who can be involved in a surrogacy arrangement, how surrogacy arrangements occur and what parties are required to do prior to and during the pregnancy.

While all States and Territories have different laws, all across Australia commercial surrogacy is illegal and the surrogacy arrangement must be altruistic. This means that a surrogate must not receive any material benefit or advantage as a result of the surrogacy. As will be explained below, the surrogate can be reimbursed for certain expenses.

Commercial surrogacy carries severe consequences like the arrangement is void and parties are penalized with a fine or a term of imprisonment (or both). It is important to get legal advice before giving or receiving anything when a surrogacy arrangement is being considered.

Who can enter into a surrogacy agreement?

Under the ART Act, a person can commission a surrogate if a medical doctor has formed the opinion that the person is:

1. Unlikely or unable to become pregnant;

2. Unlikely or unable to carry a child or give birth; or

3. Likely to place their life or health (or that of the fetus) at risk if they become pregnant, carry the fetus or give birth.

A surrogate must be:

1. Over the age of 25 years of age;

2. Have given birth to at least one child; and

3. Her egg is not being used in the conception of the child.

A government body, called the Patient Review Panel (“PRP”), determines applications for assisted reproductive treatments and must be satisfied of the above conditions before approving the proposed treatment.

Surrogacy process

There are a number of steps that parties must take before the transfer and implant of an embryo to a surrogate. In Victoria, parties must:

1. Find a surrogate:

(a) Speak to friends and family, and join online support networks that connect surrogates and intended parents. It is illegal to advertise for a surrogate or to be one.

2. Medical assessments:

(a) All parties must undergo a medical assessment to ensure that they are eligible and surrogacy arrangement.

3. Counselling:

(a) All parties, including a surrogate’s partner and/or the donor and their partner (if any) must do separate and joint counselling sessions with a psychologist or psychiatrist.

4. Independent legal advice:

(a) All parties must obtain independent legal advice about the legal consequences of entering into a surrogacy arrangement.

5. Apply for a surrogacy arrangement to the PRP:

(a)  The PRP must approve the application before starting the surrogacy treatment. Once the parties lodge an application, they will attend an informal hearing with the PRP. The PRP will then check that all the requirements under the ART Act have been met.

6. ART process:

(a)  Once the PRP has approved the surrogacy treatment, the parties can start the treatment procedure with a registered ART Provider.

7. Apply for a Substituted Parentage Order:

(a)  Once the child is born, the intended parent(s) apply to transfer legal parentage of the child to them.

How does the legal parentage transfer from the surrogate to the intended parent/s?

At birth, the surrogate (and partner, if any) are legally recognised as the parent(s) of any child born from a surrogacy arrangement. This is because the surrogate carries and gives birth to the child. The surrogate and her partner will be listed on the child’s birth certificate.

The intended parent(s) apply to the County Court of Victoria (and in some more complex cases, the Supreme Court of Victoria) for a Substitute Parentage Order to legally transfer the parentage from the surrogate (and her partner if any) to them. In essence, this means changing the child’s birth certificate to name the intended parent/s as the legal parent/s.

An application must be made no less than 28 days and no more than 6 months after the birth of the child. Court documents, including an Application and Affidavits from all parties must be sent to the Court.  The Court must be satisfied that the conditions required by the ART Act have been met and transferring parentage is in the best interests of the child.

Once an Order is made, the birth certificate will be changed and the intended parent(s) will be recognised as having the legal rights and obligations of a parent.

What expenses can the surrogate be reimbursed for?

In Victoria, surrogate mothers can be reimbursed for reasonable expenses that are incurred as a direct consequence of entering into the surrogacy arrangement.  These expenses can include (but are not limited to):

1. reasonable medical bills;

2. the surrogate’s counselling sessions;

3. loss of income due to taking unpaid leave; and

4. out of pocket expenses such as travel.

It does not include paying a surrogate’s living expenses or gifts of money. It is recommended that parties agree on what reasonable expenses will be met under a Surrogacy Agreement and obtain legal advice in relation to what expenses are and are not able to be reimbursed.

It is also important to note that Medicare does not subsidise surrogacy costs in Australia, and therefore intended parent/s should consider and prepare for the financial costs involved before entering into a surrogacy arrangement.

Surrogacy Agreements

Written surrogacy agreements are not mandatory or legally enforceable under Victorian law. However, we recommend parties enter into written surrogacy agreements to ensure that all parties have fully considered the legal, medical, ethical and psychological implications of surrogacy. Agreements can help avoid any disputes in the future.

Surrogacy agreements should be drafted after the parties have had discussions regarding matters such as pregnancy and child care, ongoing contact between surrogate and the intended parent/s and/or child, circumstances in which a pregnancy may be terminated, and what happens if there is a dispute, like attending dispute resolution event and who bears those costs.

How we can help

We can assist with ensuring your surrogacy arrangement is a smooth and happy process by providing legal advice, drafting surrogacy agreements and the process of transferring legal parentage.

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