Family Law Library

Surrogacy in Australia

Surrogacy – when another woman carries and gives birth to a child for another person and then gives that child over – started thousands of years ago when infertile women offered their handmaids to childless husbands.  Since then, the technology has advanced quite a bit and now includes many variations of the traditional surrogate.   These scientific developments – including IVF and the ability to freeze sperm and eggs – have necessitated legal changes throughout the world.  Questions abound regarding the ethics of surrogacy, the legal status of the surrogate and the parents and the ability of nontraditional families (same sex couples, singles) to use surrogates to have children.

There are two types of surrogacy.  In traditional surrogacy, also known as genetic contracted surrogacy, the egg is from the surrogate and the sperm is donated by the father.  This links the fetus genetically to the surrogate.  Gestational surrogacy involves both an egg and sperm donation (one or both may come from the intended parents) and involves In Vitro Fertilization (IVF), in which the egg is fertilized in a petri dish, and the embryo is then implanted into the surrogate.  The surrogate has no genetic connection to the fetus with gestational surrogacy.  This distinction is important for determining who are the legal parents of the child and what citizenship the child obtains.

The laws surrounding surrogacy in Australia are somewhat complex.  Commercial surrogacy, where a woman is actually paid to carry the child, is illegal in all states in Australia.  Overseas commercial surrogacy – primarily in India, the United States and Thailand is against the law in New South Wales, Queensland and the Australian Capital Territory.  Altruistic surrogacy, in which a woman has no financial gain from carrying the child (although reasonable expenses, such as medical costs, travel, work lost, are covered by the parents) is legal in all states in Australia.  The Assisted Reproductive Treatment Act 2008 (ART Act) came into force in Victoria in 2010, and opened more doors for surrogacy.

Some Important Laws on Surrogacy in Victoria in the ART Act

  1. The woman serving as s surrogate must be at least 25 years old, previously gave birth to a live child and is NOT using her own eggs in the surrogate pregnancy (gestational surrogacy).
  2. Everyone involved in the surrogacy arrangement must be approved by a Patient Review Panel.  The Panel will make sure that all of the requirements in (1) are met and, in addition, that all those involved received legal advice and counseling.
  3. The Patient Review Panel may approve a surrogacy plan, even if all of the conditions in (1) and (2) above have not been met, in exceptional circumstances.
  4. Those involved may also have to undergo a police check (to determine if there is a criminal record) and a child protection order check.
  5. No advertising!  Nobody may “publish” any type of notice or advertisement regarding a person’s willingness to be a surrogate or a person’s search for a surrogate.