TYPES OF SURROGACY
In gestational surrogacy the surrogate’s egg is not used in conception, so the surrogate has no genetic link to the baby. The embryo transferred into the surrogate may be created using the intended parents’ sperm and egg, or donor material or embryos may be used.
In traditional surrogacy an egg from the surrogate is used. This means the surrogate gives birth to a child that they are genetically related to. It is legal but can be more complex due to the biological link. Many fertility clinics, including Victoria, do not facilitate traditional surrogacy. It is possible to do a traditional surrogacy arrangement using home insemination however this then has implications for the transfer of legal parentage.
Altruistic surrogacy
Australian states and territories allow altruistic surrogacy which means the surrogate does not receive payment or compensation for carrying a child for the intended parents.
Commercial surrogacy
All Australian states and territories prohibit commercial surrogacy where the surrogate is paid for being a surrogate. In some states/territories it is also an offence to engage in overseas commercial surrogacy.
AUSTRALIAN SURROGACY LAWS
Surrogacy laws are not uniform across Australia and vary according to the relevant state or territory legislation. Accordingly, it is vital for surrogates and intended parents to understand the particular laws that relate to them.
Some of the key differences include:
| Victoria | · The surrogate must be at least 25 years old and have had a baby
· The intended parents must live in Victoria · The surrogacy arrangement must be approved by the Patient Review Panel · The surrogacy arrangement must be carried out in Victoria to be able to apply for transfer of parentage orders · Assisted Reproductive Treatment Act Vic 2008 |
| NSW | · A written surrogacy agreement must be in place before the surrogacy arrangement
· It is an offence to engage in overseas commercial surrogacy although from 1 July 2025 the law has changed to allow the Supreme Court to make parentage orders for children born through commercial overseas arrangements in exceptional circumstances · Need to demonstrate a medical or social need · Surrogacy Act 2010 (NSW) and Assisted Reproductive Technology Act 2007 (NSW) |
| ACT | · It is an offence to engage in overseas commercial surrogacy however in limited circumstances a court can make a parentage order where the child was born through commercial surrogacy where the child is facing a pressing disadvantage
· There is no need to demonstrate either a medical or social need · All parties must have a written agreement before the surrogacy arrangement · Intended parents may advertise for a surrogate · Assisted Reproductive Technology Act 2024 (ACT) and Parentage Act 2004 (ACT) |
| Queensland | · It is an offence to engage in overseas commercial surrogacy
· It is illegal to advertise for any surrogacy arrangement · Parties must agree on the terms of the surrogacy arrangement by way of an agreement in writing · Need to establish a medical or social need · Surrogacy Act 2010 (Qld) |
| South Australia | · Both the intended parent and the surrogate must be an Australian citizen or permanent resident and provide the other with a criminal history
· At least one intended parent must live in SA however the surrogate does not need to live in SA · A written surrogacy agreement is required · Intended parents must ensure counselling is available to the surrogate before, during and after birth and failure to comply with this is an offence · Surrogacy Act 2019 (SA) and Assisted Reproductive Treatment Act 1988 (SA) |
| Northern Territory | · Only recently introduced any legislation regarding surrogacy
· Surrogate must be a citizen or permanent resident · A legally certified written surrogacy agreement should be in place before the surrogate becomes pregnant · Surrogacy Act 2022 (NT) |
| Western Australia | · There must be a surrogacy agreement in place approved by the Reproductive Technology Council
· Surrogacy is not available to same sex couples · It is an offence to engage in overseas commercial surrogacy · Surrogacy Act 2008 (WA) and Human Reproductive Technology Act 1991 (WA) |
| Tasmania | · Intended parents must have a surrogate who lives in Tasmania
· A written agreement is required to confirm the terms of the surrogacy arrangement · Need to establish a medical or social need · Surrogacy Act 2012 (Tas) |
- In most states the surrogate must be at least 25 years old.
- In most states there is no requirement for a surrogate to have previously birthed a child, however in others the surrogate must have previously carried a pregnancy and given birth to a live child.
- In some states there must be a medical need for the surrogacy. In other states there needs to be a medical and/or social need.
- Victorian fertility clinics can only carry out procedures for gestational surrogacy, whereas all other states/territories permit both gestational and traditional arrangements.
- Unfortunately, same sex couples cannot access treatment in Western Australia
- Generally, the intended parents must live in the state/territory that they enter the surrogacy arrangement in. The NT allows for exceptional circumstances and SA limits this to at least 1 parent.
- The surrogate does not necessarily need to live in the same state/territory as the intended parents. For example, the Queensland Act specifically refers to the surrogate’s travel costs in and out of Queensland as reasonable costs. It appears that Tasmania is the only state/territory to specifically provide that Tasmanian intended parents must have a surrogate who lives in Tasmania.
- In the NT and SA, the surrogate must be an Australian citizen or a permanent resident however there are no such requirements in the rest of Australia.
- It is an offence to advertise for a surrogate in Victoria. This makes it incredibly difficult for intended parents to find a surrogate. Intended parents may accordingly look to international surrogacy however those who live in ACT, NSW and Queensland of course face the situation where it is illegal to enter into an overseas commercial surrogacy arrangement.
- While some states/territories require a written agreement prior to the surrogacy arrangement, such agreements are not legally binding or enforceable. Parties are generally required to undertake legal advice and counselling.
- While commercial surrogacy is prohibited in all states and territories, it is legal to reimburse a surrogate for their reasonable surrogacy costs.
- Generally it is accepted that the surrogate has the right to manage her pregnancy and birth the same as any other pregnant person.
TRANSFER OF LEGAL PARENTAGE
In Australian surrogacy arrangements, the surrogate, and her de facto partner or spouse if applicable, is considered the legal parent of the child at birth and will be recorded on the child’s birth certificate.
Accordingly, legal parentage of the child must be transferred to the intended parents by a court order of the relevant state/territory. It is important that the intended parents have complied with the particular laws of the relevant state or territory to ensure the success of that application.
Until the Court makes such an order, the surrogate and her partner (if any) are legally responsible for the child, including making decisions for the child.
This is an area that is constantly changing and recently the Attorney General referred an inquiry into surrogacy laws to the Australian Law Reform Commission (ALRC).
The ALRC has been asked to review Australian surrogacy laws, policies and practices to identify legal and policy reforms including proposals for uniform or complementary laws across Australia that are consistent with Australia’s international obligations and the protection of human rights. Some of the particular issues the ALRC has been asked to consider are how to reduce barriers to domestic altruistic surrogacy arrangements in Australia and how surrogacy arrangements made outside of Australia should be addressed by Australian law. The report is due to the Government by 29 July 2026 and it is likely that we will see further legislative amendments.