Surrogacy Law: Your Fertility, IVF & Parentage Legal Guide
Are you looking to have a child through surrogacy? Have you been asked to be a surrogate mother?
Knowing your legal rights around surrogacy can often be a confusing.
Because of the evolving nature of surrogacy laws, many people don’t realise their rights and responsibilities regarding surrogacy arrangements.
In this guide, our surrogacy lawyers will clearly outline what surrogacy is and the rights and responsibilities available to you, and the surrogate mother.
- What Is Surrogacy?
- Is Surrogacy Legal In Australia?
- What Is Altruistic Surrogacy?
- International Surrogacy
- Gay Surrogacy In Australia
- Surrogate Mothers
- Getting A Parentage Order
- Advantages & Disadvantages Of Surrogacy
- How To Get A New Birth Certificate In NSW?
- Find The Best Surrogacy Lawyers In Sydney
Need A Sydney Surrogacy Lawyer?
What Is Surrogacy?
Surrogacy is when another woman carries and gives birth to a baby for another person or couple who want to have a child.
In surrogacy, an embryo is created using an egg and sperm produced by the intending parents or donors. It is then transferred into the surrogate’s uterus. The surrogate has no genetic link to the child and once born, the baby is returned to the intended parents.
Surrogacy is a highly complex process and there are many important steps that must be taken to make sure you have the best decision. This can include extensive counselling, psychiatric assessment, and independent legal advice. It can often be a time consuming and emotional process and not something that should be entered into lightly.
Is Surrogacy Legal In Australia?
In Australia, altruistic surrogacy, which occurs without financial benefit to the surrogate, is legal. Commercial surrogacy, which is the payment of a surrogate, is illegal in Australia.
Whilst you will be expected to cover medical bills and any other out of pocket expenses, you cannot enter into a financial agreement above and beyond this.
Surrogacy Laws In Australia
The current laws regarding surrogacy in Australia allows for the presumption that when a woman gives birth to a child, she and her partner are the parents of that child, regardless of genetics. As a result, under Australian law, surrogacy agreements are not legally binding.
To formalise surrogacy arrangements you will need to get a parentage order.
Australian surrogacy law recognises in Section 60HB of the Family Law Act 1975 that the legal transfer of parentage regarding surrogacy arrangements is the responsibility of the state and territory governments.
Fortunately, most state and territory laws on surrogacy regulate surrogacy arrangements in Australia and provide for transfer of the legal parentage of children, so long as the surrogacy arrangements meet any requirements set out in legislation.
Parenting orders or adoption will need to be organised depending on your local state laws. It is possible that a surrogate may change her mind and decided to keep the child. For this reason, we strongly advise to have a lawyer write up a contract.
The contract should clearly list your intentions before starting a surrogacy process. It is recommended the agreement be written, signed and witnessed so it can stand in court if need be.
Whilst a surrogate can change her mind, it is not common. In most cases, the months of counselling received before and during the pregnancy by both the surrogate and partner allow them to successfully hand the baby over to the genetic parents after birth.
Where Is Surrogacy Legal?
Surrogacy in Australia law can differ from state to state and territory. Each state and territory have strict regulations and eligibility requirements that must be met before entering into any surrogacy agreements. The only exception is the Northern Territory, which currently has no laws regarding surrogacy. Some differences in state and territory surrogacy law include:
- In Western Australia and South Australia, altruistic surrogacy is only legal for straight couples. Surrogacy is currently not legal for same-sex couples or single people.
- In Tasmania, a surrogate mother must be at least 25 years old and the pregnancy cannot be her first.
- It is illegal to advertise for a surrogate, or to offer to be a surrogate in all Australian states except for NSW, SA, WA and the NT. Where it is legal to advertise in Australia, the advert must not be paid.
- Some aspects of surrogacy are also regulated by international law.
New South Wales Legislation
As stated previously, the birth mother is automatically considered the mother of the child, regardless of genetics. This means for a couple or single party to be recognised as the child’s parents, the parties involved will need to come to some sort of binding agreement.
The NSW Surrogacy Act (2010) allows for a parentage order to be created when a surrogacy arrangement has been entered into.
Surrogacy in NSW allows the intended parents to be either a couple or single. This also applies to same sex couples or singles.
In order to be a surrogate mother in NSW, the surrogate must be over the age of 25.
Commercial surrogacy is a commercial arrangement is entered into between the intended parents and the surrogate mother. This usually involves the surrogate mother receiving a payment for her services beyond the reimbursement of out of pocket expenses.
Commercial Surrogacy In Australia is illegal in most states and territories. It is also illegal in many other countries.
Why is commercial surrogacy illegal?
There are many debates regarding the ethics of commercial surrogacy. Many people feel it takes advantage of vulnerable women and exploits the system of reproduction.
However, many advocates argue that it is unfair for a woman to carry a child for someone else and get nothing in return. Many believe that it is best to openly allow commercialised surrogacy so that it can be regulated and everyone’s rights can be protected.
What Is Altruistic Surrogacy?
Altruistic Surrogacy is when a surrogate mother volunteers to act as a surrogate. The mother receives no financial gain for carrying a child. Only reimbursement of out of pocket expenses such as medical costs, travel, time off work and legal expenses can be covered by the intended parents.
Traditional surrogacy is when the surrogate woman gets artificially inseminated with the father’s sperm. A tradition surrogate is the child’s biological mother. It was her egg that was fertilized. The mother carries the baby and delivers it for you and your partner to raise.
Gestational surrogacy is when the surrogate mother is implanted with an embryo created by IVF, using the intended mother’s egg and the intended fathers or donor’s sperm. The resulting child is genetically related to the intended mother and genetically unrelated to the surrogate mother.
Overseas Surrogacy us a surrogacy arrangement involving a surrogate mother who lives in another country. There are many international laws that cover the fundamental rights of children that Australia is committed to protecting.
Extreme caution is recommended when getting involved with international surrogacy arrangements.
International Surrogacy Laws In Australia
Be careful, many overseas surrogacy arrangements outside of Australia may not fulfill a variety of requirements under state and territory laws for a transfer of legal parentage. This can be due to a number of reasons including the surrogacy arrangements being of commercial nature or the parties involved haven’t received adequate coupling or legal advice.
In addition, it is also illegal in NSW, the ACT, and QLD to enter into an international surrogacy arrangement. Potential penalties can include significant fines and imprisonment.
The result is the transfer of legal parentage to the intended parents may not be recognized under Australian law. You should always seek independent legal advice before proceeding with international surrogacy arrangements.
Gay Surrogacy In Australia
Same-sex couples in Queensland, Victoria, and New South Wales are now able to access altruistic surrogacy in Australia.
Under the reformed family law legislation, a child who is born to or adopted by a same-sex couple can be legally recognized as the child of both parents.
This also allows for the parents to have their names recorded on the child’s birth certificate.
However, in Western Australia and South Australia, surrogacy is only available to straight couples. Surrogacy is not available to single parents or same-sex couples.
What Is A Surrogate Mother?
A surrogate mother is a woman who agrees to bear a child on behalf of another person or couple. The surrogate mother becomes pregnant through some form of assisted reproductive technology (ART), most common being IVF. The surrogate mother carries the baby to term and gives birth. The baby is then released from the hospital and given over to its intended parents.
Surrogate Mother Requirements
Many assisted reproductive technology clinics have a number of conditions that have to be met before they offer treatment. It is usually required that a surrogate fulfil all of the following requirements:
- By NSW law, the surrogate mother must be older than 25, and younger that the age of natural menopause. This age is usually 52, however in can be increased slightly in unique situations.
- Whilst it is not a legal requirement in NSW, most clinics prefer that the birth mother has previously given birth to a child of her own.
- The host mother must have no prior history of pregnancy-related complications or illnesses.
- There must be an established relationship between the intended parents and surrogate mother for a period of 2 years or more by the time of the embryo transfer.
- Neither the intended parents nor the surrogate mother suffer from any significant psychiatric disorders that would impact decision-making or the future welfare of a child.
Surrogate Mother Legal Rights
Due to the Surrogacy Act being passed in NSW, intended parents of a child born through surrogacy can now apply to the NSW Supreme Court for thirty days after birth. If it is granted, the intended parents gain full parenting rights and their name on the child’s birth certificate.
The Surrogacy Act also means that the surrogate mother is legally entitled to have her expenses covered by the intended parents. This includes medical expenses, counselling bills, and any legal fees.
Any genetic information of the child must be stored in a central register, similar for children conceived through assisted reproductive technology like IVF.
It is always important for all parties to seek legal advice before continuing with any surrogate arrangements. As a surrogate mother, it is important for you to know how the surrogacy laws specifically apply to you and your rights and responsibilities in relation the surrogacy agreement.
Getting A Parentage Order
What Is A Parentage Order?
Parenting Orders are Court Orders that transfer parentage from the surrogate parent/s to the intended parent/s as part of a surrogacy arrangement.
Every time a child is born, their birth will need to be registered. This is no different when it comes to a child born through surrogacy.
However, in order to get the intended parents name on the birth certificate, they will need to apply for a parentage order.
The legal presumption regarding parentage is that the child born to a woman is considered to be the child of that woman and her partner.
Based on surrogacy laws in NSW, the legal presumption about parentage applies irrespective of the surrogacy arrangements made between the surrogate and the intended parents and whether or not the child is biologically related to the surrogate mother.
The result of a parentage order is the intended parents will now appear as the child’s parents on the child’s birth certificate. As the legal parents, they will now have the right and authority to make decisions for the child. It also means the child will also stop being the child of the birth parent, and the birth parent will cease being the parent of the child.
How Go Get A Surrogate Parentage Order In NSW?
Prior to the Surrogacy Act in 2010, the only way to transfer parentage was through adoption. However, under the Surrogacy Act 2010 (NSW) the intended parents can now make an application to the Supreme Court of New South Wales for a parentage order.
Currently, applications for parentage orders can only be made between 30 days and 6 months after the child’s birth. If the parentage order is granted then the intended parents gain full rights and responsibilities regarding the care of the child. Their name will also appear on the child’ birth certificate.
However, keep in mind that surrogacy laws in NSW are consistently being reviewed and may well evolve in the future. Always consult a lawyer to find out how the laws apply specifically to your situation.
Parentage Order Eligibility
To be eligible for a Parentage order, the following conditions must be met.
- The surrogacy must have been altruistic.
- The birth mother must be at least 25 years old.
- All parties involved in the surrogacy arrangements must have obtained independent legal advice and counselling.
- The birth mother needed to have provided informed consent prior to conception.
- The child needs to be living with the intended parents at the time of application.
Advantages & Disadvantages Of Surrogacy
Advantages Of Surrogacy
Why choose surrogacy? For many people who want to have their own child and can’t conceive, surrogacy can be an excellent option for someone that wants a baby that is biologically theirs.
Surrogacy is a great option for a couple who of the same sex. Having a child naturally is impossible for these couples, however, surrogacy allows them to have a child of their in. In such cases, the source of the sperm or egg will have to be from one of the intended parents to avoid any legal complications in the future.
Risks And Challenges Of Surrogacy
Surrogacy is a big commitment, and there are often a lot of challenges along the way. Surrogacy can be a long and tedious process – it is a long term commitment. There will be a lot of processes that will need to be followed and will require patients for all parties involved.
Finding a surrogate mother who is healthy and willing can take a lot of searching. Once you have found a willing surrogate, there will be a lot of medical and legal procedures that will have to be followed.
At times, there have been issues when a surrogate mother does not want to part with the child, which can complicate the whole scenario. This is why independent legal advice and counselling for all parties involved is important.
Do you know how much surrogacy costs? Surrogacy is a very expensive procedure. Costs can range anywhere between $50,000 and $100,000. Financial planning is required by the intended couple before they go ahead. Expenses that will need to be considered will also include the medical bills, compensation, legal fees and medication for the surrogate mother.
You will need to ensure that all legal procedures are in place before you, your partner and the surrogate commit to surrogacy, other you may face legal issues later.
Also, consider the future of the child. Eventually, you will likely need to tell the child about their heritage at some point. It is always a good idea to think now about how you will approach it. Many parents are open and honest about how their child was born. Experts say that this is much better for the child’s emotional development, rather than keeping it secret.
How To Get A New Birth Certificate In NSW?
In order for the intended parents to be included on a child’s birth certificate they will need to apply for a parentage order through the NSW Supreme Court.
Once a parentage order is granted, the intended parents will have full parental rights and responsibilities for the child. This will also be affected on the child’s birth certificate, which will now register the details of the intended parents instead of the birth parents.
Apply For A Birth Certificate
Do you need a new NSW birth certificate for your child? If you have a parentage order that lists you on the child’s birth certificate, you can apply for a new birth certificate through Births, Deaths and Marriages NSW.
NSW Birth Certificate Cost
A new birth certificate in NSW will cost you $53 for a standard birth certificate. If you want a stylised commemorative birth certificate, which also includes a standard birth certificate, it will cost you $77. All these prices include standard postage and handling, however if you want priority processing, it will cost an additional $25.
These prices are subject to changed, so be sure to check out the Births, Deaths, and Marriages site for the most up to date information.
Find The Best Surrogacy Lawyers In Sydney
Did you know that you must get independent legal advice before you make any surrogacy arrangements? Surrogacy laws in Australia require all parties to get legal advice before continuing with a surrogate arrangement. Otherwise, there can be legal complications in the future.
Whether you are the intended parents or the potential birth mother, surrogacy lawyers can help you understand your rights, obligations and the legal implications of surrogacy.
We understand that surrogacy can often be an emotional time for everyone one involved. It can be a big decision. Our family lawyers are experts in helping people start a new family through surrogacy. We can help you understand the current surrogacy laws and how it applies to your specific situation.
Speak to one of our professional lawyers today.