Surrogacy

There are two types of surrogacy in Australia; traditional surrogacy and gestational surrogacy. These are both known as altruistic surrogacy, where the surrogate mother does not receive a payment, reward or other material benefit or advantage from the arrangement, other than payment of the surrogate mother’s surrogacy costs.

Traditional surrogacy involves the surrogate mother using her eggs to conceive with the intended father’s sperm or an alternative donor.

Gestational surrogacy involves an embryo being transferred to the uterus of the surrogate.

Commercial surrogacy agreements, where a payment or reward is paid to the surrogate, are illegal in Australia.

You must meet certain criteria if you want to grow your family by way of surrogacy. You must show that you have a medical or social need for surrogacy.

You may be eligible for surrogacy if:

• There is one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman.
• There are two intended parents under the surrogacy arrangement and the intended parents are two men, two eligible women, or a man and an eligible woman.

An eligible woman is a woman who:

• Is unable to become pregnant or unable to carry a pregnancy or give birth due to medical reasons; or
• Can become pregnant, but is unlikely to survive the pregnancy or birth or it is likely that her health will be significantly affected by the pregnancy or birth; or
• Can become pregnant, but her child is unlikely to survive the pregnancy or birth, or it is likely the child’s health will be significantly affected by the pregnancy or birth, or
• Can become pregnant but is likely to have a child affected by a genetic condition or disorder attributable to her.

In most cases, surrogate mothers are individuals who are already known to intended parent/s. This may be a friend or relative.

In Queensland, you cannot advertise for a surrogate or advertise to be a surrogate, including online or on social media.

Independent legal advice is necessary before entering a surrogacy arrangement.

All parties must enter a surrogacy agreement before the child is conceived.

Surrogacy agreements can be complex and should be prepared by a lawyer to ensure that all relevant matters pertaining to the surrogacy arrangement are covered.

In addition to the surrogacy agreement, you will also require a parentage order to transfer parentage of the child following the baby’s birth.

You can make this application when the child is between 28 days and six months old and when the child has lived with the intended parent/s for at least 28 consecutive days.

Once a parentage order has been granted, the surrogate mother and her partner will no longer have a legal parental relationship with the child.

A surrogacy lawyer can assist you through the various stages of your surrogacy journey.

In Queensland, surrogates must be at least 25 years old.

A surrogacy agreement outlines the rights and obligations of all parties involved. By entering into a surrogacy agreement, all parties can have clarity and it should prevent potential disputes from arising during the surrogacy journey.  

The agreement will outline:

• Who the intended parent/s are (there can be one intended parent), who the surrogate mother is, and any other relevant parties.
• The rights, obligations, and responsibilities of all parties including:
  • The role and responsibilities of the birth mother during the pregnancy. This can involve decisions around if the surrogate mother will be undergoing IVF treatment, if the surrogate mother is expected to carry the pregnancy to term, outlining the pregnancy expectations, attending scheduled medical appointments throughout the pregnancy, getting tests done such as scheduled scans or the NIPT test (a non-invasive prenatal test that screens for genetic health conditions such as Down Syndrome and other chromosomal differences), taking pre-natal supplements, etc.
  • Medical treatments during pregnancy and birth.
  • Maternity requirements in the lead up to the birth.
  • Payment of the birth mother’s costs and what this entails.
  • Arrangements for the birth of the child. All parties should discuss the birth plan and preferences of the surrogate mother. Will the surrogate mother opt for a home birth? Under what circumstances might the surrogate mother choose a caesarean birth?
  • What are the intended parent/s responsibilities for the child after birth.
  • How will the intended parent/s be involved in the pregnancy (will they attend scheduled scans and other medical appointments, and will they be present during the birth, for example).
  • Contingency plans for potential medical complications and what medical treatment might be required to manage these situations.
  • Issues around custody, guardianship, and the legal process to transfer parentage after birth.
• There may also be terms that stipulate under what circumstances the pregnancy may be terminated.