All about surrogacy in Australia: how it works, the different types, and what's legal

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What is surrogacy?

Surrogacy is a method of assisted reproduction where a woman carries a child on behalf of another person or couple, who are medically unable to conceive or give birth themselves. It is a very sensitive and complex subject in Australia, made even more so thanks to legislation differing from each state and territory.

One main point remains the same in each jurisdiction of Australia: any form of commercial surrogacy – where a party is seen to be profiting from the agreement – is illegal and punishable by law. Only altruistic surrogacy, where the birth mother is only reimbursed for her medical expenses and any reasonably related costs, is permitted to take place.

How is surrogacy governed?

Each state and territory have enacted their own legislation with regards to surrogacy, with the ACT leading the way in 2004. Only the Northern Territory remains as the one place where both altruistic and commercial surrogacy are illegal, as there are no laws surrounding surrogacy.

For more information on the legislation in each state and territory, see below, or read our guide to surrogacy around Australia.

Who is involved in the surrogacy process?

There are two main parties involved: the birth mother/surrogate and the intended parent/s.

The birth mother/surrogate is the woman who will be carrying the child, and the intended parent/s are the people who will raise the child once it has been born. All parties must meet specific selection criteria (as advised by each state and territory's legislation) in order to proceed as either a birth mother/surrogate or intended parent/s.

A transfer of parentage will also need to be applied for after the birth of the baby, in order to get the intended parent/s names on the birth certificate instead of the birth mother/surrogate's.

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It is important to note that lawyers and qualified counsellors and psychologists, as well as specialist medical staff, all play a very important role in the surrogacy process, especially when it comes to drafting and signing a surrogacy arrangement document.

What is a surrogacy arrangement?

According to NSW's Surrogacy Act 2010 No. 102, a surrogacy arrangement is "an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a pre-conception surrogacy arrangement)".

There are many legal and emotional obligations that need to be met under surrogacy arrangements. Parties will need to have sought independent legal advice, as well as counselling both before and after the baby is born. In some states, these agreements are only approved after being sent to a specific medical panel for approval.

It is important to note that any surrogacy arrangement that has been entered into is not legally binding in any state. This is what can make surrogacy a legal and emotional minefield for intended parents.

Can I make money from surrogacy?

No! It's illegal to profit in any form from acting as a surrogate/birth mother in Australia. All surrogacy arrangements must be "non-commercial" or "altruistic", meaning the only money which is allowed to change hands is to reimburse the surrogate/birth mother for any medical expenses as well as reasonable pregnancy related expenses incurred (such as maternity clothes, special pillows to help her sleep, etc).

Are there different types of surrogacy?

There are two main types of surrogacy: traditional and gestational.

Traditional surrogacy occurs when the surrogate is both the egg donor and the birth mother/surrogate, and the sperm comes from either the intended father or a donor. In this case, the surrogate is also the biological mother of the child.

Traditional surrogacy is legal in Western Australia, and illegal in the ACT and Northern Territory. Queensland, New South Wales, Victoria and South Australia all have very restricted access to the highly regulated traditional surrogacy option.

Gestational surrogacy occurs when the embryo (which is transferred to the birth mother via in vitro fertilization) is created using both the biological father's sperm and the biological mother's egg. This means the baby will not be related biologically to the surrogate at all.

The embryo is transferred via IVF to the surrogate after the biological mother's egg is fertilised. This can take between three to five days, and there is no guarantee of a successful transfer to the surrogate.

Gestational surrogacy is legal in all Australian states, as well as the ACT. It is only illegal in the Northern Territory, which has no laws in place regarding surrogacy.

Is international surrogacy legal?

Australians are known to be one of the largest undertakers of international surrogacy arrangements, with India, Thailand and the US the three main countries where commercial agreements currently take place. India, with its availability of highly trained, English-speaking medical staff, as well as its cost effective and speedy process, is the number one destination for Australians exploring international surrogacy; according to data provided by an Australian Institute of Family Studies report "Use of surrogacy by Australians", 394 babies were born in India to Australian citizens in 2011 alone.

It is important to note that since the aforementioned report was released, India has toughened its stance on international surrogacy. Those now wanting to explore this option require a medical (surrogacy) visa, which stipulates that the applicant must have been married for at least two years and be resident in a country in which overseas surrogacy is not illegal. As it is an offence in New South Wales, Queensland and the ACT for intended parents to enter into commercial surrogacy arrangements overseas, they – along with single intended parents, de facto couples and gay couples – are forbidden to undertake this surrogacy measure by Indian law.