There are lots of stories about the rich and famous who've had to rely on surrogacy to have a child, Nicole Kidman, Sarah Jessica Parker and Elton John to name a few.
But the laws in Australia are much more complex than overseas and we have now seen government crackdowns on surrogacy arrangements in countries like India, Nepal, Sri Lanka and most recently Cambodia, which has left babies, surrogate mothers and the intended Australian parents in limbo.
So what does this mean for the average Australian yearning for a child but can't carry their own?
In all states and the ACT commercial surrogacy, that is where payment is made, is illegal. Only 'altruistic' surrogacy, where the surrogate receives no financial payment or benefit other than payment of reasonable medical expenses, is permitted. The Northern Territory does not have any laws regarding surrogacy.
Each state places additional and varied restrictions on who can be involved in a surrogacy arrangement making it complicated and inaccessible for some:
- In Queensland, Victoria, New South Wales and Tasmania anyone can be an intended parent regardless of their gender, sexual orientation or relationship status;
- In Western Australia, South Australia and the ACT only heterosexual couples or a woman are permitted to be an intended parent;
- In Victoria, Tasmania and Western Australia to be a surrogate, the woman has to have previously given birth;
- In all States aside from the ACT the surrogate must be at least 25 years old.
The surrogate must register the birth of the child and her name will appear on the Birth Certificate as the child's parent, the intended parent/s then need to obtain a Court Order to transfer the child's parentage and register the Order with the Registry of Birth, Deaths and Marriages.
A surrogate could refuse to hand over the child and the only option for the intended parent is to apply to the Family Court for a parenting order that the child live with them. On the other hand the intended parent could refuse to take on parentage of the child.
Medicare rebates are not provided for IVF use for surrogacy. This, as well as the complicated nature of our laws, leads to many travelling overseas to engage in commercial surrogacy. However, this is prohibited in Queensland, New South Wales and the ACT with maximum penalties of $12,190 or 3 years imprisonment in Queensland. In the other States it can be difficult to get overseas parenting orders recognised.
For a fact sheet on surrogacy in Australia, visit: https://www.border.gov.au/about/corporate/information/fact-sheets/36a-surrogacy
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Alison and Jillian Barrett are both principals at Maurice Blackburn Lawyers. The Queensland sisters are experienced lawyers and passionate social justice campaigners. Alison juggles motherhood, as well as heading up a major legal practice area. Younger sister Jillian also leads a team of lawyers and sports a double degree in Law and Journalism.