Surrogacy in Australia

By June 2, 2022Blog

Whether you are considering being a surrogate, or are looking to have someone surrogate for you – it is important you understand the legal considerations that surround the surrogacy process.

At its very core, surrogacy is an arrangement between two parties, where the surrogate agrees to carry and birth a child on behalf of another person or couple. As with all high stakes arrangements, the agreement should be legally documented to ensure both parties have truly considered the implications and help avoid possible disputes down the track.

What you should know about surrogacy 

There are two types of surrogacy arrangements:

  • Altruistic surrogacy – where the surrogate does not receive payment for carrying the baby, apart from reasonable expenses incurred such as medical expenses, counselling sessions and travel expense. This type of surrogacy is legal in Australia.
  • Commercial surrogacy – where the surrogate receives a payment or compensation for carrying the baby. This type of surrogacy is not legal in Australia.

In Australia, surrogacy legislation varies from state to state.

In Victoria, the following requirements apply:

  • You must be infertile, unable to carry or birth a baby, or pose a medical risk to yourself or the baby if pregnancy is carried out
  • The surrogate must be 25 years old or older.
  • The surrogate must have previously been pregnant and given birth.
  • The surrogate must not use her eggs.
  • You and the surrogate must receive counselling and legal advice.

The legal parents at birth 

When the baby is born, the legal parents are the surrogate and their partner (if they have one) and they will be listed on the birth certificate.

In order to become the legal parents, the intended parents need to apply to the court for a Substitute Parentage Order. Once approved, the parentage is transferred from the surrogate to them and the birth certificate is changed to name them as the legal parents of the child.

There are strict time frames that surround Substitute Parentage Orders. Court documents and affidavits from all parties must be submitted between 28 days and 6 months from the date of birth.

A Surrogacy Agreement

With strict timeframes surrounding applications for Substitute Parentage Orders, a Surrogacy Agreement helps to ensure that all parties have considered the implications of the arrangement and prevent future dispute or disagreements. While not legally enforceable here in Victoria, it will typically detail:

  • What happens if the pregnancy is terminated?
  • If there is to be any contact between the surrogate and child?
  • If there is a dispute, who will pay for costs associated with dispute resolution?

Navigating the legal side of surrogacy 

The gravity of what is at stake when it comes to surrogacy, along with the complexity of the legal requirements surrounding it, means that anyone considering surrogacy should get professional legal advice (a legal requirement here in Victoria).

The team at Lakey Family Law has significant experience in this area and can advise you on how the law applies to your specific circumstances – simply contact us for an initial, obligation free chat.