At Sarah Bevan Family Lawyers, we can provide you with the legal advice that you need to ensure that your surrogacy arrangement is legal and proceeds without a hitch. Our aim is to ensure that our clients know exactly what is happening throughout the whole process of their surrogacy arrangement. We will use plain English to explain this to you and can advise you on how to proceed if you are considering a surrogacy arrangement. Whether you intend to have a child through a surrogacy arrangement or you intend on being a birth mother in a surrogacy arrangement, we can assist you. To speak to one of our surrogacy lawyers, call 1300 00SBFL (1300 007 235). You can also reach us by email at firstname.lastname@example.org
Where in Australia is Surrogacy Legal?
Altruistic surrogacy is legal in New South Wales, Australian Capital Territory, Queensland, South Australia, Tasmania, Victoria and Western Australia. The Northern Territory does not have any laws regarding surrogacy.
The term Altruistic is derived from the principle of ‘Altruism’. This principle refers to a selflessness or practice of concern regarding the welfare of others. In the context of surrogacy, this means that the surrogate does not receive compensation for being a birth mother to the child.
Each state and territory has their own legislation regarding surrogacy arrangements, which sets out the criteria for being eligible for this type of arrangement as well as the process by which parentage is transferred. The legislation, which applies to you, is the one from the state or territory where you ordinarily reside.
In some states such as Victoria it is illegal to advertise surrogacy. Whereas in others, including New South Wales and Western Australia, it is legal to advertise surrogacy arrangements as long as no fee is paid for the advertisement.
Below, you will find a simple breakdown of the legality of surrogacy in each State and Territory of Australia and who can enter into a surrogacy agreement.
New South Wales
In NSW, the Surrogacy Act 2010 (NSW) governs surrogacy. The Act legalises altruistic surrogacy. A single person or a couple (this includes same sex couples) can enter into a surrogacy arrangement as an intended parent. The birth mother must be at least 25 years of age and the intended parents must be at least 18 years of age when they enter into a surrogacy arrangement.
Australian Capital Territory
In the ACT, the Parentage Act 2004 (ACT) governs surrogacy. This Act states that an eligible couple may only enter into a surrogacy arrangement if they are 18 years of age, unable to conceive or able to conceive but not carry to full term without significant risk. One of the intended parents must also be a genetic parent.
Under the Surrogacy Act 2010 (QLD), you can enter into an altruistic surrogacy agreement in Queensland. A couple may enter into a surrogacy arrangement as intended parents. In Queensland, any person, regardless of their relationship status can enter into a surrogacy agreement. This includes married or de facto couples, singles or same sex couples.
Surrogacy in South Australia is regulated by the Family Relationships Act 1975 (SA). Under this Act, the Commissioning Parents (i.e. those who will have custody of the child) must be at least 18 years of age and legally married, in a registered relationship or cohabited for at least 3 years preceding the surrogacy agreement. Couples include same sex couples.
In Tasmania, the Surrogacy Act 2012 (TAS) administers surrogacy. In this state, intended parents must be at least 21 years of age and can be couples including same sex couples or singles.
In Victoria, surrogacy is regulated by the Assisted Reproductive Treatment Act 2008 (VIC). There are stringent criteria in place for birth mothers and intended parents. Intended parents can be couples, same sex or single but mustn’t be able to conceive or give birth to their own biological children. Further, a birth mother must be at least 25 years of age, must have at least one live child and no genetic link to the intended mother.
The Surrogacy Act 2008 (WA) makes altruistic surrogacy legal in Western Australia, however only heterosexual couples can be part of surrogacy arrangements in the state. Further, the birth mother must be at least 25 years old and must have previously given birth to a live child.
There are no laws relating to surrogacy in the Northern Territory. This means that is neither legal, nor illegal to engage in such an arrangement. The issues with this, is that the transfer of legal rights from birth parents to the intended parents is not possible unless the birth mother puts the child up for adoption.
Prohibition of commercial surrogacy
Commercial surrogacy is prohibited in all states and territories of Australia. Commercial surrogacy arrangement refers to one where there is a fee, reward or other material benefit or advantage to a person for the person agreeing to enter into a surrogacy arrangement or giving up a child to the intended parents or consenting to making a parentage order in relation to a surrogacy arrangement. This means that you cannot enter into or offer to enter into a surrogacy arrangement that involves this type of reward or fee. The penalties for entering into commercial surrogacy arrangements are harsh For example, if you are found to have entered into a commercial surrogacy arrangement in New South Wales, the maximum penalty is 1,000 penalty units, which is equivalent to a $110,000 fine and up to 2 years imprisonment, or both. It is important to bear in mind that a birth mother’s surrogacy costs are not considered a fee or reward.
A surrogacy agreement is an agreement between the surrogate and intended parents that outlines all parties’ rights and responsibilities within the surrogacy arrangement.
It is imperative that you have a lawyer who specialises in family law draft this agreement for you to ensure that it covers all necessary aspects of the arrangement. A surrogacy lawyer can also assist you in transferring parentage from the birth mother to the intended parents. Sarah Bevan Family Lawyers is a specialist family law firm with years of experience in drafting these types of agreements and providing quality legal advice on surrogacy arrangements. To find out how we can assist you, speak to one of our friendly lawyers on 1300 00SBFL (1300 07235) or email us at email@example.com.