Aspiring parents should familiarise themselves with surrogacy laws in Australia if they prefer surrogacy over adoption and other methods. But, what is surrogacy and how is it different from adoption? Surrogacy is a type of childbirth arrangement that requires a third party, that is, the surrogate mother (birth mother). This will typically require a surrogacy agreement and a surrogacy contract between the surrogate mother and the intended parents.
The surrogate is the one responsible for giving birth to a child and giving the child to another person. People who opt for surrogacy arrangements are usually unable to conceive a child because of infertility. A person meets the requirements to commission a surrogate if:
- The birth mother is unlikely to become pregnant as a woman due to a medical condition
- There have been multiple unsuccessful transfers of a genetically normal embryo
- The intending parent is a single parent or in a same-sex relationship
Sections 60H and 60HB of the Family Law Act 1975 also recognise a child born under surrogacy arrangements. On the other hand, adoption is for people who legally own another child and raise them as their own. However, this will require the intended parents to seek consent from the child’s biological or legal parents.
Surrogacy allows parents to enjoy parenthood in a non-conventional but legal way. This includes men and women who prefer to have a child and remain single or even men who are in a same-sex relationship. Read on to know more about surrogacy laws in Australia.
Surrogacy Arrangement Process and Requirements
People may be curious about the surrogacy process and if there are risks involved. The gestational surrogacy process begins with inseminating a fertilised embryo into a healthy surrogate mother or gestational carrier. It is also uncommon for a surrogate to engage in sexual activity with the father.
However, there are times when a couple’s egg and sperm come from a pair who prefers for a third party to carry their child. IVF Australia has set out conditions to reduce the risks of surrogacy to both the intended parents and the surrogate. These conditions and requirements are as follows:
- Surrogate mothers are qualified to undergo surrogacy arrangements if they are older than 25 and younger than the age of natural menopause. The natural age of menopause is 52 and is sometimes increased to 55 depending on circumstances.
- The surrogate must have already given birth to her own child
- Surrogate mothers should not have any history of pregnancy-related illnesses or complications
- A surrogate must have an established relationship with the intended parents for at least 6 months by the time of the embryo transfer.
- There are no serious psychological conditions that both the surrogate or intended parents have that would affect their ability to make decisions or care for the kid.
- The surrogate is not allowed to use her own eggs
After the birth, the Intended Parents can apply to the Court for a Parentage Order in the state where they live. 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.
Acts That Govern Surrogacy in Australia
- NSW – Surrogacy Act 2010 (NSW)
- WA – Surrogacy Act 2008
- ACT – Parentage Act 2004
- QLD – Surrogacy Act 2010
- SA – Family Relationships Act 1975
- TAS – Surrogacy Act 2012
- VIC – Assisted Reproductive Treatment Act 2008
- NT – None
Surrogacy Laws Australia: Altruistic Surrogacy Vs Commercial Surrogacy
Surrogacy laws in Australia state that a woman must choose to act as a surrogate because of altruistic reasons. What does this mean? Surrogate mothers who participate in altruistic surrogacy are compensated with fair reimbursements for pregnancy and delivery-related medical costs. The intended parents must locate their own surrogate during altruistic surrogacy arrangements.
Moreover, it is unlawful for a woman to advertise her willingness to serve as a surrogate mother. While intending parents who want commercial surrogacy will compensate the surrogate mother for carrying and giving a child to them. It is unlawful in all Australian jurisdictions except the Northern Territory (NT) since there is no legislation for commercial surrogacy arrangements.
Surrogacy Legislation in Other States
Intending parents should also familiarise themselves with the state surrogacy laws in Australia since it varies from state to state. It is already mentioned that NT doesn’t have state laws and regulations on commercial surrogacy. So, it’s important to tackle what are the other state’s laws and regulations about surrogacy. The following applies except for NT:
- It is illegal to enter into a commercial surrogacy arrangement anywhere in Australia
- Surrogate mothers must reach the age of 25 in all jurisdictions outside of South Australia (SA) and the Australian Capital Territory (ACT). Additionally, mothers must reach the minimum age of 18 in SA and ACT in order to serve as a surrogate.
- There are medical requirements for surrogacy in most jurisdictions. Although New South Wales (NSW), Tasmania (TAS), Queensland (QLD), and Victoria (VIC) allow surrogacy for social reasons, such as in the case of same-sex couples.
- It’s important to note that Western Australia (WA) expressly disallows “age” as a valid medical justification
- There are no social or medical requirements for surrogacy in the ACT
- Surrogates in VIC, TAS, and ACT cannot serve as surrogates unless they have already given birth to their own children.
- All States and Territories allow same-sex couples to use surrogacy except for WA
- In all states and territories, with the exception of the ACT, single women are eligible to become surrogates. However, this is not the case for single men.
- All States and Territories, with the exception of VIC and the ACT, require that a written agreement outlining the surrogacy agreement be in existence.
- In Australia, traditional surrogacy is legal everywhere but in the ACT.
- In the ACT, QLD, and VIC, people are not permitted to advertise, whether they are looking for a surrogate or want to be one. Online publication is included in this.
International Surrogacy Arrangements
It gets more challenging to track legal requirements as more governments start to overlap and regulate the surrogacy procedure. While commercial surrogacies are prohibited in Australia, they are nevertheless permitted in several other countries. It’s important for intending parents to know the following when considering overseas surrogacy:
- How other country’s surrogacy laws differ from surrogacy laws in Australia
- The terms and conditions of the concerned country’s laws on surrogacy
- Some commercial surrogacy arrangements are classed as the sale of children which breached children’s rights in some countries
- Some surrogate moms work under contracts including bonded labour. This is illegal since it is a type of slavery.
Surrogacy Case Example
In the case of Seto and Poon (2021), the applicant (Ms Yue) and respondent (Ms Poon) negotiated a surrogacy arrangement. Ms Yue and Mr Seto (Ms Yue’s husband) already underwent five unsuccessful IVF treatments. Ms Poon is Ms Yue’s close friend and the arrangement was similar to a commercial surrogacy arrangement.
If Ms Poon is able to act as a surrogate mother for Ms Yue and Mr Seto, she would receive a Contributory Parent Visa. In June 2020, the couple entered into a further agreement entitled “Agreement on Renunciation of Guardianship”. This agreement resulted in Ms Poon giving up custody of the children only if Mr Seto paid IVF and medical costs, and acted as the financial guarantor of the application. Further costs included the following:
- A $7000 deposit
- $4500 for Ms Poon’s tuition fees
- $50,000 throughout Ms Poon’s pregnancy to aid her immigration application
- Half of any costs over $100,000
Ms Poon announced that she would no longer require Australian residency in August 2020. Why? A new law gave residents of Hong Kong access to a way for a temporary visa lasting five years. This included the possibility of a permanent residency. Then, the respondents allegedly started to demand more money, so the couple paid another $30,000.
In the latter half of 2020, twins W and Z were born. These children’s biological parents were Ms Poon and the father Mr Seto. In January 2021, Ms Poon’s attorney wrote to the couple demanding that $290,000 be paid within 7 days.
Surrogacy Laws Australia: Proceedings for Parentage
The court recognised Ms Poon and Mr Seto as the twins’ biological parents. Ms Poon’s husband (Mr Zhu), was excluded as a parent because he only entered into the agreement for personal financial gain. Mr Seto was deemed to be the children’s parent according to Australian standards. Hence, his legal parenthood was determined after careful analysis for the reasons of:
- Providing financial support to the children from the time of their birth
- Spending time with the children as permitted from their birth
- Fulfilling his role as a full-time parent of the children
- Being responsible for associated responsibilities and duties
- The children living in the full-time care of him and his wife since March 2021
The court determined that the twins continue residence with Ms Yue and Mr Seto. Moreover, it was in the child’s best interests that Ms Yue and Mr Seto equally share parental responsibilities. The court did not make any orders for the twins to spend time with Ms Poon and Mr Zhu.
Importance of Seeking Legal Advice About Surrogacy Arrangements
Intending parents or surrogate mothers should seek legal advice in order to ensure that they comply with surrogacy laws in Australia. JB Solicitors’ family lawyers can help with legal matters that require determining parentage or drafting parenting orders. Indeed it may be a lengthy and complex procedure, but our legal advice can help to address the legal tension during surrogacy disputes.
Contact us today for more information about surrogacy laws in Australia.