Surrogacy in Australia
Surrogacy is when another woman carries and gives birth to a child for another person or couple.
Most surrogates are Gestational Surrogates where the surrogates eggs are not used to create the embryo or for conception, the surrogate is not the biological mother of the baby. The embryo may be created using the egg and sperm of the intended parents/couple or it could be created using a Donor Egg and the intended couples sperm or Donor Egg and Donor Sperm or Donated Embyro’s.
Otherwise, the Surrogate may provide the egg via IVF and then become the surrogate as well but this is rare.
Who needs a Surrogate:
- A woman whose life may be at risk or the babies life may be at risk if she carries and gives birth to the baby.
- A woman whom has had recurrent miscarriages
- A woman whom has no uterus for various reasons or has a uterus that is unable to carry a baby.
- Continual failed IVF
- Same Sex couples.
Surrogacy Laws in Australia
It’s illegal to be paid commercially to be a surrogate in Australia. The laws are more relaxed in the NT but the local Fertility Centres ensure that it’s not considered or recommended.
Surrogacy in Australia is altruistic, i.e. there is no financial benefit to the surrogate, they can not be paid a fee by the recipient/s for being a surrogate.
In WA and SA altruistic surrogacy is only legal for hetrosexual couples, unfortunately it’s illegal for same sex couples.
In Tasmania, the surrogate must be 25 years or older and must have had at least one child of her own before being a surrogate.
Whilst it’s illegal to pay a surrogate or to be paid to be a surrogate, all out of pocket medical expenses will be covered by the recipient/s as well as any other “reasonable” out of pocket expenses, such as travel, parking, babysitting, cleaning, time off work (if you are employed and would be working at the time). These “reasonable” out of pocket expenses and the medical expenses are the only financials that can included in any agreement between the surrogate and the recipient/s.
The laws in regard to advertising for a surrogate in Australia are different for the state and territories.
It’s illegal to advertise for a surrogate or advertise to be a surrogate in QLD, TAS and VIC.
In NSW, SA, WA and NT you can advertise for a surrogate but the ad must not be a paid advertisement and it must not be a commercial agreement. This is the same for surrogates, you can only advertise to be a surrogate if you live in these states and it’s not a paid advertisement and not a commercial agreement.
Therefore you can advertise on this website if you are living in NSW, WA, SA and NT for a surrogate or to be a surrogate. When you place your ad, you must clearly state what stipulate which of these states you are from and please ensure you put your contact number in the initial ad for approval so I can contact you if needed. (your contact number will be removed before the ad is approved and live on the website). Please adhere to these legal requirements so I can continue to run this website and allow this wonderful service for intended recipient/s and surrogates to connect.
These legal restrictions do make it a bit harder to find this wonderful person especially if you are from VIC, QLD and Tassie. Make sure whatever state you live in, you ask around friends, family and acquaintances as well. As its such a big decision, you need to give them time to think it over and make an informed decision.
Surrogacy legalities for the NTKeep in mind if you also need an egg donor and a surrogate you need to factor in both processes and procedures and the timing for both.
It’s also illegal to be a commercial surrogate in NZ.
Many intended parents are entering commercial surrogacy arrangements overseas. Please ensure you do your due diligence and consult a family lawyer before entering into any commercial surrogacy agreement overseas.
Relevant acts for each state: (make sure you read this for your own due diligence)
Could I be a Surrogate?
It is recommended and in some states the law to be over 25 and preferably under 55 years of age and have completed your family or at the very least had one child of your own.
It’s a very rewarding experience but it’s not for everyone. Many surrogates give this wonderful gift to a family member or friend as they have most likely watched them go through years of heartache trying to conceive and carry a child.
Things to consider are;
- do you enjoy being pregnant?
- have you had complication free pregnancies
- can you take necessary time off work for any complications and the later stages of pregnancy and the birth
- have you discussed this with your partner and family
- do you want to give the most amazing gift to someone?
What are the risks of being a Surrogate?
- Multiple pregnancies
- General pregnancy risks
- You might have reactions to the fertility drugs to enable your uterus to be ready for the embryo, however this is rare
- Emotions of carrying the baby and then sadness having to give it up after giving birth
- Pregnancy symptoms
- Time off work
It’s strongly encouraged to ensure that the surrogate has access to counseling during the pregnancy and definitely after the birth of the baby. Most surrogates are aware of this emotional aspect but are just so happy to help another person have a child. Many also become that “special aunty” and an integral part of the family. These are all things both the recipient/s and the surrogate need to think about and discuss.
Be aware that surrogacy contracts are not legally binding here in Australia, the birth mother is legally considered the mother of the child even if they are not the biological mother of the child. You will need to take out a parenting order in most states in Australia to adopt the baby or become the legal parent.
Please ensure you do your due diligence on this and seek legal advice from a family lawyer before making any agreements, contracts or decisions regarding surrogacy and a surrogate.
Once you have found your wonderful surrogate, again ensure you have received legal advice from a family lawyer and you have discussed all aspects. You can then move onto the IVF phase, you most likely have your own IVF clinic or you may choose one nearer to your surrogate. If your surrogate is also your egg donor, you need to speak to your IVF clinic about the processes, procedures and legalities of this. If you are using your own eggs, then you also need to speak to them about the procedure.
If you are using a separate egg donor, then you will need to find your Egg Donor Angel if you haven’t already and go through this process as well. See my page on becoming an Egg Donor Angel in regard to process for this.
Some websites to help you gather more information in regard to Surrogacy:
Surrogacy Australia – an incorporated not for profit association registered with Consumer Affairs Victoria. Supports Australians who are planning or are already parents using a surrogacy arrangement. You can become a member and they will give you information on going overseas for a surrogate as well as information, seminars and support on this journey. They also have a Facebook Group that you can join as well.
Altruistic Surrogacy – part of Fertility Connections.
Australian Government Department of Immigration and Border Protection – information on international surrogacy arrangements.
Surrogacy NSW – Surrogacy Legal Advice for Parents – legal firm that specialise in surrogacy laws in NSW
Stephen Page – Page Proven – Stephen is a director of Page Provan family and fertility lawyers in Brisbane. He is highly regarded as the leading surrogacy lawyer in Australia and one of Brisbane’s most respected LGBTIQ friendly lawyers. Stephen has written and presented at conferences around the world.
Stephen’s first surrogacy case was in 1988. Since then he has appeared in courts in Queensland, New South Wales, Victoria and South Australia on surrogacy matters- the only lawyer to have done so.
Stephen has been a Queensland Law Society accredited family law specialist since 1996. He has practiced in all areas of family law and has three sub-specialties :
Stephen is a Fellow of the International Academy of Family Lawyers and a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys. He is an international representative on the Assisted Reproductive Technology Committee of the American Bar Association.
Stephen graduated with Bachelor of Laws (Honours) in 1985 from the then Queensland Institute of Technology (now QUT). In 1987 Stephen was admitted as a solicitor of the Supreme Court of Queensland. In 1989 Stephen was admitted as a solicitor of the High Court of Australia. In 2013 Stephen was admitted as a barrister and solicitor of the Supreme Court of South Australia.
Sarah was shortlisted for the Lawyer’s Weekly Women in Law Awards 2019 in two categories – Thought Leader and Sole Practitioner of the Year. She was also a finalist in the 2020 Australian Law Awards for Innovator of the Year.
Sarah advocates for positive, empowered, best practice altruistic surrogacy arrangements within Australia, and provides support and education to help intended parents make informed decisions when pursuing overseas surrogacy. Through her work as a lawyer, Sarah promotes the best interests of the child and the bodily autonomy of the surrogate, and supports intended parents and surrogates to build a relationship that lasts. Sarah is the only lawyer practising exclusively in surrogacy and donor conception (family creation) law in Australia and practises across all states and territories.
Sarah has published The Australian Surrogacy Handbook, a guide for intended parents and surrogates starting out on their journey. Sarah also produces The Surrogacy Podcast, sharing stories from intended parents and surrogates from around Australia.
Media articles of interest:
There are various countries that you can go to and enter a commercial or alturistic agreement for a surrogate, the main ones currently are New Zealand, Russia, South Africa, Ukraine, UK and the USA (check each state for it’s legal requirements). India and Thailand have now stopped overseas surrogacy due to several highly publicised cases.
The laws for many of these countries can and do change, so please ensure that if you are considering this do your research and check their current legal requirements.
Websites with further information:
USA California State Laws for Surrogacy – Modern Family Surrogacy Centre
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