Surrogacy has become an increasingly popular option for Australians looking to start or expand their families in non-conventional ways. As adoption regulations have tightened, surrogacy has emerged as an attractive alternative for various individuals and couples, including those facing medical challenges, single parents, and same-sex couples. This comprehensive guide aims to provide a clear understanding of surrogacy laws in Australia, addressing the complexities and variations across different states and territories.

What Exactly are Surrogacy Laws in Australia

Surrogacy Laws in Australia involves a woman (the surrogate) agreeing to carry and give birth to a child for another person or couple (the intended parents). This arrangement can stem from various motivations, such as a desire to help loved ones or a personal calling to support others in experiencing parenthood.

In the context of surrogacy laws, a “surrogate” is essentially a substitute, carrying a pregnancy on behalf of someone unable or unwilling to bear the child themselves. This situation can arise due to various reasons, including professional concerns, infertility, or health risks associated with pregnancy. Surrogacy can be a difficult issue to address due to the highly sensitive nature of the topic.

Types of Surrogacy Laws in Australia

Understanding the different types of surrogacy is crucial when navigating surrogacy laws in Australia. There are two primary forms of surrogacy:

Traditional Surrogacy

In this arrangement, the surrogate uses her own egg, often through artificial insemination. This method is less common due to the genetic link between the surrogate and the child.

Gestational Surrogacy

This more common form involves creating an embryo using the egg and sperm of the intended parents or donors. Here, the surrogate carries the pregnancy but has no genetic link to the child.

Furthermore, surrogacy can be classified as either altruistic or commercial:

Altruistic Surrogacy

In this type, the surrogate does not receive payment beyond reimbursement for medical expenses and other pregnancy-related costs. This is the only legal form of surrogacy in Australia.

Commercial Surrogacy

This involves the surrogate being compensated beyond just medical costs, typically through financial arrangements. Commercial surrogacy is illegal throughout Australia.

Surrogacy Laws Across Australia

Surrogacy laws in Australia are complex and vary significantly across different states and territories. However, some general principles apply nationwide:

• Commercial surrogacy is illegal throughout Australia.
• Altruistic surrogacy is legal, but regulations differ by state.
• Surrogates must typically be at least 25 years old, with exceptions in South Australia and the ACT where the minimum age is 18.
• Most jurisdictions require a medical necessity for surrogacy, though some states like New South Wales and Victoria also allow social reasons.
• Written agreements for surrogacy are required in many territories.
• Traditional surrogacy is allowed everywhere except the ACT.

New South Wales Surrogacy Laws in Australia

In New South Wales, surrogacy is governed by the Surrogacy Act 2010. Key points include:

• Intended parents must be at least 25 years old and reside in NSW.
• The surrogate must be at least 25 years old.
• Commercial surrogacy is prohibited.
• Gestational surrogacy is preferred, meaning the surrogate should not be genetically related to the child.
• Advertising for surrogacy is allowed for intended parents but not for potential surrogates.

Queensland Surrogacy Laws in Australia

Queensland’s surrogacy laws are outlined in the Surrogacy Act 2010:

• Intended parents and surrogates must be at least 25 years old.
• Intended parents must be Queensland residents.
• All parties must receive legal advice and counseling.
• Only gestational surrogacy is permitted.
• Commercial surrogacy is prohibited.

Victoria Surrogacy Laws in Australia

Victoria’s surrogacy laws are governed by the Assisted Reproductive Treatment Act 2008:

• Intended parents must be at least 18 years old and Victorian residents.
• The surrogate must be at least 25 years old and have previously given birth.
• The intended mother must be unable to carry a pregnancy or if she were to do so, it would pose a risk to her or the baby’s health.
• All parties must undergo counseling.
• Commercial surrogacy is prohibited.

South Australia Surrogacy Laws

South Australia’s surrogacy laws are outlined in the Family Relationships Act 1975:

• All parties must be at least 18 years old.
• Intended parents must be South Australian residents.
• Legal advice and counseling are mandatory for all parties.
• The intended parents must be genetically related to the child unless both are unable to conceive with their own genetic material.
• Commercial surrogacy is prohibited, but there are no restrictions on advertising.

Western Australia Surrogacy Laws

Western Australia’s surrogacy laws require:

• The surrogate must be at least 25 years old and have previously given birth.
• A written agreement signed by all parties.
• Legal advice and counseling for all parties.
• Medical evaluations to determine parental suitability.
• Approval from the Reproductive Technology Council before the surrogate becomes pregnant.

Tasmania Surrogacy Laws in Australia

Tasmania’s surrogacy laws, as per the Surrogacy Act 2012, stipulate:

• Intended parents must be at least 21 years old.
• The surrogate must be at least 25 years old and have given birth to at least one living child.
• All parties must be Tasmanian residents at the time of birth.
• Legal advice and counseling are mandatory for all parties.
• A written agreement outlining the arrangement terms is required.
• Only gestational surrogacy is permitted.

Australian Capital Territory (ACT) Surrogacy Laws

In the ACT, surrogacy laws are governed by the Parentage Act 2004. Key points include:

• Intended parents must be at least 18 years old and ACT residents.
• The surrogate must be at least 18 years old.
• Only altruistic surrogacy is permitted; commercial surrogacy is illegal.
• Payments to the surrogate are limited to pregnancy-related expenses.
• Advertising for surrogacy is prohibited.
• Both traditional and gestational surrogacy are allowed.
• All parties must receive counseling and independent legal advice before entering into a surrogacy arrangement.
• The surrogacy arrangement must be in writing and signed by all parties.
• There must be a medical or social need for the surrogacy arrangement.

To transfer parentage, the intended parents must apply for a parentage order from the ACT Supreme Court. This application can be made between 6 weeks and 6 months after the child’s birth. The court will only make the order if it’s satisfied that:

• The child is living with the intended parents
• The surrogate (and her partner, if applicable) freely consent to the order
• The order is in the best interests of the child

It’s important to note that while the ACT allows both traditional and gestational surrogacy, many fertility clinics may only facilitate gestational surrogacy arrangements due to the potential legal and emotional complexities associated with traditional surrogacy.

Northern Territory Surrogacy Laws in Australia

The Northern Territory currently does not have specific surrogacy legislation in place.

Parentage Orders and Legal Recognition

A crucial aspect of surrogacy laws in Australia is the process of obtaining legal recognition as the child’s parents. This typically involves applying for a Parentage Order after the child’s birth. The requirements and timeframes for these orders vary by state:

In Western Australia, applications must be filed between 28 days and 6 months after the child’s birth.

• Victoria requires that the child is already living with the prospective parents in Victoria when the application is submitted.
• The surrogate’s consent (and her partner’s, if applicable) is generally required.

The court will always considers the child’s best interests when making a decision.

International Surrogacy Considerations

International surrogacy adds another layer of complexity to an already intricate legal landscape. While commercial surrogacy is illegal in Australia, it is permitted in some other countries. This can lead to significant legal challenges when bringing a child born through international commercial surrogacy back to Australia.

Key points to consider for international surrogacy include:

Legal Status

In the Australian Capital Territory, New South Wales, and Queensland, it’s an offense to enter into a commercial surrogacy arrangement outside of Australia.

Citizenship

Children born to Australians overseas do not automatically become Australian citizens. Specific requirements must be met before applying for citizenship.

Parentage Recognition

The process of legally recognizing intended parents can be complex when the child is born overseas.

Legal Expertise

It’s crucial to seek legal advice from experts in both Australian family law and the laws of the country where the surrogacy will take place.

Future of Surrogacy Laws in Australia

Surrogacy laws in Australia continue to evolve. There’s ongoing discussion about the potential for more uniform national legislation to address the current state-by-state variations. Some advocates are also pushing for the legalization of commercial surrogacy, arguing that it could provide better protection for all parties involved.

As societal attitudes change and medical technologies advance, it’s likely that surrogacy laws will continue to be a topic of debate and potential reform in the coming years.

Conclusion

Understanding surrogacy laws in Australia can be a complex process, but confronting the legal landscape is crucial for anyone considering this path to parenthood. While the laws vary across states and territories, some common threads exist, such as the prohibition of commercial surrogacy and the requirement for legal and medical oversight.

For those contemplating surrogacy, whether domestically or internationally, it’s essential to seek professional legal advice. An experienced family lawyer can provide guidance on the specific laws applicable to your situation, help you understand your rights and responsibilities, and assist in navigating the legal processes involved in surrogacy arrangements.

Remember, while the legal aspects of surrogacy can seem daunting, many Australians successfully navigate this process each year. With proper guidance and understanding of the relevant surrogacy laws, it’s possible to embark on this journey with confidence, focusing on the joy of building your family relationships rather than getting lost in legal complexities.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters.