Laws on surrogacy in Australia differ depending on the state and jurisdiction. While there are certain basic principles of surrogacy in Australia, the specific laws may differ from state to state. In this blog, we will explore laws on surrogacy in Australia.
State and territory governments, and not the federal government, regulate surrogacy laws in Australia. This means that the laws can vary somewhat depending on where you live. However, there are some general principles that all states across the country follow.
In general, surrogacy is legal in Australia, but it is subject to a number of conditions. For example, it is illegal to pay a surrogate in Australia, except for reasonable expenses associated with the surrogacy. This means that surrogacy arrangements are usually based on altruism, rather than commercial gain.
To read more about surrogacy laws in all states of Australia, read our blog here. For instance, in NSW the legislation is the Surrogacy Act 2010, whereas in Victoria it is the Assisted Reproductive Treatment Act 2008.
Types of Surrogacy in Australia
There exist two distinct kinds of surrogacy, namely:
- Traditional surrogacy – in which the surrogate contributes her own egg, often through artificial insemination, and;
- Gestational surrogacy – in which all genetic material comes from either the intended parent/s or a third party.
A fertility specialist helps parties through these processes. Additionally, we can categorise surrogacy arrangements into two general groups, altruistic surrogacy and commercial surrogacy. Altruistic surrogacy is when a surrogate agrees to carry a pregnancy for intended parents without any financial gain.
Commercial surrogacy, on the other hand, involves a financial transaction in exchange for the surrogate’s services. This type of surrogacy is illegal in Australia, and it is also illegal to travel overseas for commercial surrogacy arrangements. Penalties for engaging in commercial surrogacy can include fines and imprisonment.
Under Australian law, it is illegal to pay a surrogate mother, except for the reimbursement of reasonable expenses related to the surrogacy, such as medical expenses, travel expenses, and legal fees. These arrangements are typically based on a pre-existing relationship between the surrogate and the intended parents, such as a friend or family member.
Additionally, all surrogacy arrangements in Australia must comply with certain legal requirements. This includes the requirement for all parties to obtain independent legal advice. Moreover, it also includes the requirement for a court to grant a parentage order to transfer legal parentage from the surrogate to the intended parents.
Overall, surrogacy in Australia is highly regulated to ensure that the rights and wellbeing of all parties involved are protected, and to prevent the exploitation of women for commercial gain.
Surrogacy in Australia: Requirements
There are also requirements around who can be a surrogate. In most states and territories, a surrogate must be over the age of 25 and have already given birth to at least one child.
There are also requirements around the health and wellbeing of the surrogate. She must undergo a range of medical and psychological assessments before she can get approval for surrogacy.
As mentioned above, another key requirement is that all parties involved in the surrogacy arrangement must receive independent legal advice before entering into the agreement. This includes the intended parents, the surrogate, and her partner (if she has one).
In terms of parentage, the laws in Australia vary somewhat between states and territories. In general, the intended parents must apply for a parentage order, which transfers legal parentage from the surrogate to the intended parents. This process can take several months and involves a range of legal and administrative steps.
Surrogacy in Australia: NSW
The Surrogacy Act 2010 regulates surrogacy in New South Wales (NSW), Australia. It outlines the legal requirements and processes for surrogacy arrangements in the state.
In NSW, surrogacy is legal, but it is subject to a range of conditions and requirements. These include:
- Eligibility: To be eligible to be a surrogate, a woman must be over the age of 25 and have given birth to at least one child. She must also undergo a range of medical and psychological assessments to ensure she is fit and healthy to carry a pregnancy.
- Intended parents: The intended parents must also undergo medical and psychological assessments to ensure they are able to provide for the child and are emotionally prepared for the surrogacy arrangement.
- Surrogacy agreement: Parties must make a surrogacy arrangement in writing and all parties involved must sign the agreement. It must include details about the rights and responsibilities of all parties, the medical procedures involved, and the expenses associated with the surrogacy.
- Compensation: Surrogates cannot receive any payment other than “reasonable expenses” associated with the surrogacy. This includes medical expenses, travel expenses, and other expenses related to the pregnancy.
- Parentage: The intended parents must apply for a parentage order to transfer legal parentage from the surrogate to themselves. They can only do so after the child is born and it can take several months to complete.
It is also important to note that advertising for surrogacy is illegal in NSW. This means that one must not allow to advertise for a surrogate or to advertise to be a surrogate. Surrogacy in NSW is highly regulated, with a focus on protecting the rights and wellbeing of all parties involved.
It is important to seek legal advice if you are considering surrogacy in NSW, to ensure that you are meeting all the legal requirements and understand the processes involved.
Seeking Advice from Lawyers
As we have explored, because each state’s requirements and laws differ, it is necessary to get tailored advice from legal professionals Our lawyers at JB Solicitors can provide you with necessary information in relation to surrogacy in Australia. There are many points to consider including whose names appear on the birth certificate of the children born.
If you have any enquires, do not hesitate to contact our award-winning team of solicitors today to obtain independent legal advice. Contact us for more information.