- All about surrogacy in Australia: how it works, different types, and what's legal
- What it's like to be a gestational surrogate
In Australia, surrogacy is heavily regulated by law. Each state and territory is responsible for their own surrogacy legislation, but all have one thing in common: agreements between the intended parents and birth mother are not legally binding, meaning if the surrogate does not wish to give up the child at birth, she has the legal right to change her mind.
Here is a breakdown from each jurisdiction on what is required by law in order to undertake surrogacy in Australia.
AUSTRALIAN CAPITAL TERRITORY
Our nation's capital was the first jurisdiction to pass surrogacy legislation with The Parentage Act 2004. It also upholds the legal viewpoint that surrogacy must only be altruistic, with only reasonable associated expenses to be reimbursed to the birth mother.
The intended parents must have tried all other available methods of falling pregnant prior to engaging a surrogate, as well have a serious medical reason to accompany their application. This will need to be verified by a gynaecologist in writing. A registered psychologist will also have to address any implications of the surrogacy process, and a lawyer needs to have made it known what the birth mother's rights are as well as the intended parents.
Once all of these criteria have been met, it is up to the Human Research Ethics Committee to approve the request before surrogacy can commence.
Advertising in any public forum (including the internet) for a surrogate is strictly prohibited in the ACT, as is any third party who assists in procuring a surrogate. It is also an offence punishable by law to enter into an overseas commercial surrogacy arrangement.
Intended parents can also have their baby's birth re-registered under the Births Deaths and Marriages Act (1997) and The Parentage Act 2004 if an approved parenting order is in place.
NEW SOUTH WALES
In NSW, regardless of your relationship status and sex, you are eligible to enter into an altruistic surrogacy arrangement (ie. the birth mother must not gain financially from this), as long as you are unable to conceive, give birth or are at risk of passing on serious genetic defects.
The intended parents are, however, allowed to reimburse the birth mother for any reasonable costs she has incurred as a result of her pregnancy, and a surrogacy arrangement must be put in writing before the pregnancy occurs.
Intended parents must be at least 18 years old and be a resident of NSW at the time of the application. The birth mother must be 25.
The Surrogacy Act 2010 No.102 also demands a pre-conception surrogacy arrangement is entered into, which will allow the intended parents to apply for parentage order (to have the child legally recognised as their own) after its birth. Legally, all parties involved are required to meet with a counsellor accredited with the Australian and New Zealand Infertility Counsellors Association or a qualified psychologist, psychiatrist or social worker who specialises in this area, as well as having sought independent legal advice before and after the birth.
In New South Wales it is an offence punishable by a fine or imprisonment to enter into an overseas commercial surrogacy arrangement.
It is legal for surrogacy to be advertised in this state, as long as it is not a paid advertisement.
A parentage order can be made to make it official between 30 days to six months after the baby is born, if all conditions have been met.
There are no laws regarding surrogacy in the Northern Territory, so technically both altruistic and commercial surrogacy are illegal. There is also no legal provision to transfer parentage from the birth mother to the intended parents, as with other states. This equates to the birth mother remaining as the legal mother unless she chooses to adopt out the baby.
Governed by the Surrogacy Act 2010, Queenslanders are permitted to enter into a non-commercial surrogacy arrangement where no money changes hands, as in NSW.
Unlike some other states, same sex couples and singles are allowed to enter into a surrogacy arrangement in Queensland. This means any person, regardless of their relationship status, or even if they are genetically connected to the birth mother, can become a surrogate parent. They may also use whichever type of method for conception they prefer.
There are strict regulations in place when it comes to transferring parentage of the baby and these must be met before entering into the surrogacy arrangement. Both the intended parents and birth mother must obtain separate legal advice so each fully understands their rights, obligations and implications regarding surrogacy. An appropriately qualified counsellor should also meet with all parties to ensure each is aware of the social and psychological impact this arrangement will have.
After the baby is born the birth parents must register the birth and will appear on the birth certificate unless a parentage order is applied for – however, in order for a parentage order to be granted by the courts, the intended parents must not have been able to carry a viable pregnancy, or the intended parents were unlikely to survive a pregnancy or birth.
Queensland also prohibits any international commercial surrogacy arrangement, an offence which can incur a hefty fine or even imprisonment.
Surrogacy been recognised by law in South Australia since November 2010, under The Family Relationships Act 1975. Again, it must be of an altruistic nature, where the only money involved is that which covers the medical costs of the birth mother.
Strictly governed conditions are in place, controlling who has access to surrogacy. All parties must be over the age of 18, be living in South Australia, be legally married or in a de facto relationship for at least three years, and the woman must be either infertile or deemed to be at great risk for pregnancy or birth, or will pass on a serious genetic defect to her unborn child.
It is legal for surrogacy to be advertised in South Australia, as long as it is not a paid advertisement.
A recognised surrogacy agreement needs to be drawn up by lawyers and signed by the birth mother and intended parents. A lawyer's certificate must be obtained independently by both parties which discloses the legal requirements of everyone involved, as well as the legal implications of surrogacy. Signatures will also be verified as a part of this process.
A counselling certificate is also a requirement of SA surrogacy law, which demonstrates all parties have received appropriate counselling, addressing any personal and psychological issues which may arise as a result of a surrogacy agreement. A certificate will then be issued once the counsellor is satisfied the surrogacy agreement would not jeopardise the welfare of a child.
The intended parents must apply to the Youth Court of South Australia for a Parentage Order within four weeks to six months of the child's birth. As long as all the terms of the surrogacy agreement have been met, they will then be legally acknowledged as the rightful parents.
In Tasmania, a birth mother may choose to relinquish a baby to another person under The Surrogacy Act 2012. As with other states, the agreement must be made in writing before the pregnancy, and signed by both parties after each sought legal advice.
Both parties must undergo mandatory counselling from a counsellor accredited under The Surrogacy Act 2012 both prior to entering into a surrogacy agreement and after the birth of the child.
Those who are eligible to be intended parents include same sex couples, those in heterosexual marriages or de facto relationships and singles. They must be over the age of 21, live in Tasmania at the time the agreement is made, and have a social or medical reason for requiring a surrogate.
The birth mother must have previously given birth to a live child, be over the age of 25, and also reside in Tasmania. It is also legally enforceable that all costs incurred by the birth mother during her pregnancy will be covered by the intended parents. She will also remain on the baby's birth certificate until the Courts grant parentage rights to the intended parents, which should be done between 30 days to six months after the birth of the baby.
In Victoria, singles, same sex and heterosexual couples who are unable conceive or give birth to their own biological children, or will pass on a severe genetic defect, can be considered for surrogacy under the Assisted Reproductive Treatment Act 2008.
The birth mother must also meet stringent requirements. She must be over the age of 25, have at least one live child, and have no genetic link to the intended mother (ie. cannot use her own eggs).
Again, any surrogacy agreement must be non-commercial, and the only money which changes hands is to cover the related expenses of the birth mother. It is also illegal to advertise in any form for a surrogate in this state.
All parties are required to undergo a criminal record check and a child protection order check to be eligible to pursue surrogacy. Each party must seek out independent counselling and legal advice. The surrogacy arrangement also has to be approved by the Patient Review Panel.
Parentage orders can be made to the Supreme or County Court no less than 28 days after the birth of the baby and no later than six months, providing the surrogacy agreement was previously approved by the Patient Review Panel.
As of 30 October 2014, children born in Victoria through altruistic surrogacy arrangements in another Australian state or the ACT will now have their parentage legally recognised in here.
Altruistic surrogacy became legal in WA under the Surrogacy Act 2008. It is also the only state where traditional surrogacy (where the birth mother uses her own eggs and is therefore genetically related to the child) is acceptable. Once again, a birth mother must not profit from surrogacy, and can only be compensated for the costs incurred as a result of her pregnancy. She must be at least 25 years of age and have given birth successfully before.
Intended parents must also meet strict criteria: at least one of the parents must be aged 25 or older, be in a heterosexual relationship, and the woman must be deemed unable to conceive or give birth for medical reasons.
It is legal for surrogacy to be advertised in Western Australia, as long as it is not a paid advertisement.
Before the birth mother falls pregnant a surrogacy arrangement should be put in writing, otherwise it will not be valid. This requires all parties involved to obtain their own legal advice, as well as undergo specific counselling, an assessment by a clinical psychologist and a medical practitioner at least three months prior to the signing of the surrogacy agreement. Once all these conditions have been met and put in writing, the agreement requires approval from the Reproductive Technology Council.
After the baby is born, and provided all the steps outlined above have been met, intended parents can apply to the Family Court for a parentage order between 28 days and six months after birth.