Commercial surrogacy in Australia is a complex topic that has gained significant attention recently. Different laws across various states and territories regulate the practice of surrogacy in Australia. Here are some common reasons why people may choose surrogacy:
- Infertility
- Medical conditions or surgeries
- Same-sex couples
- Genetic disorders
- Pregnancy risks
- Single individuals
Commercial surrogacy, which involves providing financial compensation to the surrogate mother, is a particularly contentious issue. In this article, we will explore commercial surrogacy in Australia, providing a step-by-step guide and highlighting its importance in family law matters.
What Is Commercial Surrogacy?
Commercial surrogacy refers to an arrangement where a woman (the surrogate) carries a child on behalf of another person or couple (the intended parents) in exchange for financial compensation beyond the reimbursement of medical and related expenses. Altruistic surrogacy does not usually involve payment beyond the reimbursement of expenses. Gestational surrogacy involves genetic materials by either the intended parent/s or a third party.
Why is commercial surrogacy illegal in Australia? It is illegal due to the concern for the well-being and protection of women who may be vulnerable to exploitation. Commercial surrogacy arrangements involve financial transactions. These transactions can potentially lead to the commodification of women’s bodies and create situations where they are coerced or forced into surrogacy.
Surrogacy’s Legal Landscape
The regulation of commercial surrogacy in Australia is a complex patchwork, with each state and territory having its own set of laws and regulations. In some jurisdictions, commercial surrogacy is prohibited outright. While in other states, it may be allowed under strict conditions. Here are some key points to note:
1. Commercial Surrogacy: It is illegal to enter into a commercial surrogacy agreement anywhere in Australia. Moreover, non-profit surrogacy is the only option in Northern Territory for surrogacy arrangements.
2. Surrogate Age Requirement: In all places except South Australia (SA) and the Australian Capital Territory (ACT), a surrogate must be at least 25 years old. In SA and the ACT, the minimum age requirement is 18 years.
3. Medical Need for Surrogacy: Most jurisdictions require a medical need for surrogacy. However, New South Wales (NSW), Tasmania (TAS), Queensland (QLD), and Victoria (VIC) allow surrogacy even for same-sex couples. Click here to read an article from Australian Broadcasting Corporation about surrogacy for same-sex couples.
It’s important to note that Western Australia (WA) specifically requires birth mothers to be at least 25 years old for surrogacy arrangements. The ACT does not have any specific medical or social requirements for surrogacy.
4. Surrogate’s Previous Birth: In VIC, TAS, and the ACT, surrogates must have previously given birth to children before being eligible to act as a surrogate.
Other Points to Note
5. Same-Sex Couples: Same-sex couples can pursue altruistic or commercial surrogacy in Australia in all states and territories except for WA.
6. Single Parents: Single people cannot be intended parents in the ACT. However, in Western Australia, single women (but not single men) can be intended parents. In states like NSW QLD, TAS, and VIC, intended parents can be of the same sex, or even single. Lastly, in South Australia, neither singles nor same-sex couples are permitted to be intended parents.
7. Written Surrogacy Agreement: In all states and territories except for VIC and the ACT, a written agreement outlining the surrogacy arrangement is required.
8. Traditional Surrogacy: Traditional surrogacy, where the surrogate is genetically related to the child, is permitted everywhere in Australia except for the ACT.
9. Advertising Restrictions: Advertising for surrogacy (seeking or offering to be a surrogate) is not allowed in the ACT, QLD, and VIC. This includes online platforms.
Step-By-Step Guide to Surrogacy in Australia
Step 1: Understanding the Legalities
Before embarking on a surrogacy journey, it is crucial to thoroughly research and understand the legalities surrounding surrogacy in your jurisdiction. Seek legal advice to gain clarity on the specific laws, regulations, and requirements that apply to surrogacy arrangements.
Step 2: Finding a Surrogate
Finding a suitable surrogate is a significant step in the process. There are various channels for surrogacy in Australia through which you can connect with potential surrogates, such as support groups, online forums, or specialised agencies.
This is also the case for surrogacy arrangements overseas. It is important to establish a strong and trusting relationship with the surrogate, as this will be the foundation for a successful surrogacy journey.
Step 3: Creating a Surrogacy Agreement
Once you have identified a surrogate and established a positive rapport, it is crucial to draft a comprehensive surrogacy agreement. This legally binding contract should outline the rights, responsibilities, and expectations of all parties involved. It should cover issues such as financial compensation, medical expenses, decision-making processes, and the transfer of parental rights.
Step 4: Medical Procedures and IVF
In most surrogacy arrangements in Australia, the intended mother’s eggs or a donor’s eggs are fertilised with the intended father’s sperm through in vitro fertilisation (IVF). This involves a series of medical procedures, including egg retrieval, fertilisation, and embryo transfer. The surrogate will then carry the pregnancy to term.
Step 5: Pregnancy and Birth
Throughout the pregnancy, it is essential to maintain open lines of communication between the intended parents and the surrogate. Regular medical check-ups and ongoing emotional support are crucial during this time.
When the baby is born, legal procedures will be required to transfer parental rights from the surrogate to the intended parents.
Step 6: Seeking Parentage Orders
In many Australian jurisdictions, intended parents need to apply for parenting orders to legally recognise them as the child’s parents. These orders extinguish the parental rights of the surrogate and her partner, if applicable, and transfer them to the intended parents.
Parentage orders provide security and stability for all parties involved and protect the child’s legal rights. The order transfers parentage from the birth parents (the surrogate and her partner) to the intended parents. The Birth Certificate is then reissued with the new parents listed, instead of the surrogate and her partner.
The Importance of Surrogacy in Family Law Matters
Surrogacy arrangements in Australia plays a significant role in family law matters. It allows individuals and couples who are unable to conceive or carry a child to have a biological child of their own. By following the legal procedures, intended parents can establish a secure legal relationship with the child, protecting their rights and ensuring their parental status.
Furthermore, surrogacy arrangement allows surrogates to make informed choices and actively participate in the surrogacy process.
In family law matters surrogacy arrangements in Australia helps provide clarity and stability. It establishes a legal foundation that protects the interests of all parties involved. This includes the child’s best interests. Through the process of seeking parentage orders, the intended parents can obtain legal recognition, ensuring that their parental rights are legally enforceable and protected.
JB Solicitors’ Family Lawyers
JB Solicitors, a trusted legal firm specialising in family law matters, can provide invaluable guidance and expertise. Consulting with our surrogacy lawyers is crucial to fully understanding the specific legal requirements and obligations in your state or territory. We can:
- Offer personalised and independent legal advice;
- Help draft comprehensive surrogacy agreements and international surrogacy arrangements;
- Discuss the legal complexities of Australian surrogacy laws; and
- Ensure the protection of rights and the best interests of all parties.
Seeking legal advice is a vital step towards a successful and legally secure surrogacy experience. Contact JB Solicitors today if you need help with surrogacy in Australia.
