With adoption being an extremely regulated and lengthy process in Australia, some Australians are turning to surrogacy as a way to create a family such as single people who want a child, women who are unable to fall pregnant due to medical reasons, or same-sex couples.
What is surrogacy?
Surrogacy is an arrangement for a woman to give birth to a child for another person, or couple, with the intention of giving that child to that person, or couple, once the child is born.
Surrogacy laws in Australia
There are two different types of surrogacy:
- Traditional surrogacy – where the surrogate provides their own egg, usually during an artificial insemination process; and
- Gestational surrogacy – where all genetic material is provided by either the intended parent(s) or a third party.
There are two main categories for surrogacy arrangement, these are: commercial and altruistic surrogacy.
Commercial surrogacy entails a person who agrees to act as a surrogate for the intended parent(s) in return for financial payment. This payment is in addition to the reimbursement of costs associated with the medical expenses for pregnancy.
Altruistic surrogacy is where a surrogate chooses not to receive any payment for acting as a surrogate. The intended parent(s) are able to reimburse a surrogate for reasonable costs and medical expenses associated with pregnancy, but they do not provide any financial incentive.
Australian Law
It can be difficult to navigate the laws regulating surrogacy across Australia as they are different in each state.
However, there are some general rules in place which may assist people who are considering surrogacy to understand what laws apply to where they reside.
For all states and territories, the following applies:
- It is against the law to enter into a commercial surrogacy agreement anywhere in Australia.
- In all places other than SA and the ACT, a surrogate must be at least 25 years old before being allowed to act as a surrogate. In SA and the ACT, surrogates must be at least 18 years old.
- In most jurisdictions, a medical need for surrogacy is required (although NSW, TAS, QLD and VIC allow surrogacy for social reasons, such as same-sex couples). It should be noted that WA specifically excludes ‘age’ as a suitable medical reason and that the ACT does not have any medical or social requirements for surrogacies.
- In VIC, TAS and the ACT, surrogates must have already given birth to children themselves before being allowed to act as a surrogate.
- Surrogacy is open to same-sex couples in all states and territories except for WA.
- Surrogacy is open to single women in all states and territories except for the ACT however, the same is not true for single men.
- A written agreement setting out the surrogacy agreement is required to be in place in all states and territories except for VIC and the ACT.
- Traditional surrogacy is permitted everywhere in Australia except for the ACT.
- You are not allowed to advertise (whether seeking a surrogate or wishing to be a surrogate) in the ACT, QLD, and VIC. This includes publishing online.
Anyone considering entering into a surrogacy arrangement should seek legal advice from a family lawyer who has experience in surrogacy laws that apply to their state or territory.
Surrogacy options overseas
When considering overseas surrogacy, the laws become much more complicated. This is because multiple jurisdictions overlap and it becomes very complex.
Commercial surrogacies are permissible in some countries, but they are not allowed in Australia. It is also important to know that in the ACT, NSW and QLD it is an offence to make a commercial surrogacy arrangement outside of Australia and so, people who do so could face legal problems when returning to Australia.
When considering whether to enter into an overseas surrogacy arrangement, especially a commercial one, legal advice should be obtained as it relates to your home state or territory and in the country where the surrogate lives.
Different countries have different laws regulating who may obtain citizenship. Therefore, consideration must be given to what citizenship a child will have upon birth and how the intended parents plan to bring the child to Australia.
Children born to Australians overseas do not automatically become Australian citizens and there are certain requirements that must be fulfilled when making an application. One such requirement is the provision of a surrogacy contract that was entered into before the child was conceived. This is a complex document that should be drafted with the assistance of a lawyer with experience in family law in both Australia and the country where the surrogacy arrangement took place.
Parentage Orders and other legal considerations
In addition to the many rules and requirements for parties entering into a surrogacy arrangement, thought must also be given to Parentage Orders and any pre-conditions that need to be met in order for them to be made.
Parentage Orders are Court orders to amend the birth certificate of a child to show the intended parents of a surrogacy agreement as the child’s parents, and not the birth mother and her partner if she has one.
There are time limitations for seeking a Parentage Order, which differ from state to state.
If you are considering entering into a surrogacy arrangement in Australia or overseas, please call Coleman Greig Lawyers for assistance. We can help you navigate the many complex laws and processes that apply so that you can enjoy the process of creating a family without encountering too many problems.
Based on ‘A Complete Guide to Surrogacy Law in Australia’.
Disclaimer: The information provided in the document is a general summary and is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.
