Surrogacy in Australia

In Australia, there is often a lot of controversy and debate over surrogacy, the surrogates, the baby, the intended parents and all of the laws surrounding and governing this area. It is definitely a complex topic, as a result of the legal and medical involvement, coupled with the divide between each state’s legislation governing surrogacy.

What is surrogacy?

Surrogacy is when a woman agrees to carry a baby through the pregnancy for somebody else. Once the baby is born, the custody and guardianship transfers from the birth mother to the intended parent/s. A person may consider pursuing a surrogate because they are either incapable or unwilling to bear the child themselves.

Some examples of reasons that a person may consider pursuing surrogacy include:

• Medical problems with their uterus;
• A hysterectomy to remove their uterus;
• Conditions that make pregnancy impossible or risky for the woman such as infertility or endangered through illness or disease; and
• a couple in a male same-sex relationship wish to have a child using the sperm of one or the other partner.

In most states in Australia, a surrogate cannot actually be the genetic mother of the child she carries, meaning that her egg cannot be used. Either the intended parent/s or a donor must provide the egg and sperm to form the embryo which is then transferred to the uterus of the surrogate who will carry it through the pregnancy and eventually give birth.

Who can pursue surrogacy?

Surrogate mothers and intended parents must make a formal surrogacy agreement and typically, this will need to be done before conception.

Under this agreement, each of the different Australian states have very strict regulations and eligibility criteria that need to be first met. Some of this criteria might consider the age, health, relationship status, sexual orientation and the gender of the intended parent/s. Not everybody can enter into a surrogacy agreement.

What are the surrogacy laws in Queensland?

In Queensland, the Surrogacy Act 2010 (Qld) states that it is legal for people to:

• enter into a non-commercial surrogacy arrangement so long as no money changes hands; and
• pay or reimburse the birth mother’s reasonable surrogacy costs.

However, as stated earlier, the surrogacy laws in Queensland are incredibly strict. It’s illegal for the surrogate to receive any fees or money for surrogacy and/or advertise for surrogacy. Queensland also prohibits any international commercial surrogacy arrangement. It is an offence and has the possibility of resulting in a hefty fine or even imprisonment.

This makes it incredibly difficult to find a surrogate if you can’t advertise. So how do people find surrogates? Reaching out to family and friends who may be in a position to be a surrogate is often a successful way many people in Australia will find surrogates. As well as this, there are many online groups and forums to interact and connect with intended parents and surrogates which has proven to be another successful avenue.

Some of the key factors that can contribute to a positive surrogacy arrangement may include:

• all parties being in good mental and physical health 
• clear and open communication between all parties
• clear boundaries and mutual understanding of the relationship and interactions between the surrogate and the intended parent(s) 
• realistic expectations about the chance of a successful outcome 
• a good understanding of the medical processes involved
• being prepared for the emotional responses and reactions that can occur during the process
• being aware of and prepared for the financial costs involved
• agreement on how the pregnancy and birth will be managed. 

What happens after the baby is born?

Once the baby is born through a surrogacy arrangement, a parentage order from the Courts is then needed to transfer parentage from the surrogate to the intended parent/s. This means the birth mother no longer has a legal parental relationship with the baby.

The birth parent/s names will appear on the birth certificate of the baby until the intended parent/s receive the parentage order from the Court and register this parentage order with the Registry of Births, Deaths and Marriages. After this, the Birth Certificate is then re-issued with the new parents listed, instead of the surrogate.

Despite these clear processes that have been outlined, intended parents should be wary. If the birth mother changes her mind either whilst pregnant or after giving birth, the Surrogacy Agreement becomes null and void. The birth mother is legally able to change her mind, resulting in the contract no longer being enforceable against the surrogate mother.

More information

No matter your situation, marital status or age, it is critical to seek legal advice from an experienced lawyer before entering into or agreeing to any kind of surrogacy arrangement. Not only are the laws complex, but the personal, social, emotional, financial and medical elements of surrogacy are equally difficult to maneuver without qualified support. A solicitor can assist you to make an informed decision, complete the necessary applications and provide the relevant documentation for your individual circumstances. An appropriately qualified counsellor should also meet with all parties involved in a surrogacy arrangement to ensure each is aware of the social and psychological impact this arrangement will have.

Contact our litigation lawyers for further advice.