Family Law

Are you considering a surrogacy arrangement to grow your family?

Attwood Marshall Lawyers has a dedicated team of family lawyers who understand Queensland Surrogacy Laws and can help you navigate this exciting time in your life.

Our family lawyers specialise in providing comprehensive legal advice to individuals and couples seeking to grow their family through surrogacy.

We understand that embarking on a surrogacy journey can be both exciting and overwhelming and we do not underestimate the profound emotional and legal significance of surrogacy.

Whether you are considering surrogacy arrangements as a means of starting or growing your family, or you are interested in being a surrogate for a friend or family member, our dedicated surrogacy lawyers can provide the support you need to make informed decisions and help you throughout the process.

We will guide you through the legal intricacies of surrogacy arrangements and ensure you understand your rights and responsibilities prior to entering into a surrogacy agreement.

We approach each matter with the utmost compassion, integrity, and understanding.

Whether you are at the beginning stages of exploring surrogacy options or need assistance documenting the arrangement or applying to the Children’s Court for a parentage order, we are here to help. Contact our family lawyers today to schedule an appointment.

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Navigating the surrogacy process

Each state and territory in Australia have differing laws that regulate surrogacy. Understanding the laws and regulations that apply to you, and navigating the surrogacy process can be complex. With guidance from trusted legal professionals, you can navigate this journey with confidence. In Queensland, the surrogacy process involves the following steps:

Step 1: Legal Advice

Each party to the arrangement is required to seek independent legal advice.

Step 2: Counselling

All parties must undergo counselling with a qualified professional prior to entering into a surrogacy arrangement.

Step 3: The Agreement

Negotiate and formalise the arrangement in writing (the surrogacy agreement). The agreement must be meticulously drafted and put in writing before any assisted reproductive treatment begins.

Step 4: Reproductive Treatment

With the surrogacy agreement in place, assisted reproductive treatment can proceed as planned.

Step 5: Registering the Birth

Following the birth of the child, is it the responsibility of the birth parent/s to register the birth.

Step 6: Post-birth Counselling

Undergo post-birth counselling. A different counsellor must conduct this counselling than the one who provided earlier counselling. This counsellor will provide a surrogacy guidance report.

Step 7: Parenting Order

Within six months of the child’s birth, the intended parent/s must apply for a parentage order. This legal process involves formalising the parental rights and responsibilities of the intended parent/s in respect to the child. Upon application, the court will review the matter and grant the parentage order if the requirements under the Surrogacy Act 2010 (Qld) have been met, officially recognising the intended parent/s as the legal parent/s of the child.

Step 8: Amend the Birth Certificate

Once the parentage order has been issued, the intended parent/s can apply to the Registry of Births, Deaths and Marriages for the child’s birth certificate to be amended to reflect their parental status.

Meet our Family Lawyers

In dealing with family law matters, we understand the gravity of your circumstances. Having a skilled family lawyer by your side is essential for support and navigating the legal system.
Our caring legal team will help you navigate your surrogacy journey with confidence. 

Donna Tolley - Department Manager - Wills & Estates, Family Law



Department Manager
Wills & Estates, Family Law
Hayley Condon - Senior Associate - Wills & Estates, Family Law



Special Counsel
Wills & Estates, Family Law
Michael Twohill



Special Counsel
Family Law



Senior Associate
Family Law

Surrogacy FAQs

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.

It is illegal to pay a benefit to a surrogate mother to enter a surrogacy arrangement. However, the intended parent/s may have to pay for the reasonable costs associated with the arrangement, including:

  • costs associated with the mother becoming pregnant (fertility treatment costs),
  • medical expenses associated with the pregnancy and birth of the child, including any costs for the child,
  • costs associated with entering into the surrogacy arrangement including legal costs and counselling costs,
  • costs associated with court proceedings and other legal fees related to the parenting order,
  • health insurance premiums and any other insurance costs,
  • any loss of income for the surrogate mother for days they need to take off for appointments related to the surrogacy arrangement, pregnancy, or birth, if relevant,
  • any other reasonable costs associated with the arrangement.

It is essential to speak with Medicare and your chosen private health insurer to understand what expenses are covered. Medicare and private health insurance might not cover all the necessary costs.

Despite anything that the parties to the surrogacy arrangement might have agreed, whether in writing or not, the surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman.

In such cases, the court will only make a parentage order about a child in favour of the intended parent/s if it also makes a parentage order for each living birth sibling of the child. So, the intended parent/s are required to accept all children, even in instances of unexpected multiple births.

No, residency in Queensland is not a requirement for the birth mother. However, it’s essential for the intended parent/s to be residents of Queensland when initiating a surrogacy arrangement in the state.

Despite the necessity to enter into a surrogacy agreement as part of the process when choosing surrogacy, a surrogacy contract is not legally enforceable. What this means is that if the surrogate mother changes her mind and refuses to give up the baby following its birth, the surrogate mother cannot be forced to do so. The same applies if the intended parent/s change their minds and no longer wish to take the baby following its birth.

It is important to seek legal advice early if either party deviates from the terms of the surrogacy arrangement.