Surrogacy

In Australia, there are two types of surrogacy arrangements where a woman carries a child for another person or couple; traditional surrogacy and gestational surrogacy.

Traditional surrogacy

This is where a surrogate uses her own eggs to conceive with sperm from the intended father or from a donor.

Gestational surrogacy

This is where a surrogate is implanted with an embryo using an egg from another woman. Gestational surrogacy is more common given IVF and egg donor availability.

Each State and Territory have different legal requirements about when and how a surrogacy arrangement can be entered into. For example, across Australia there are different age requirements for surrogates, different relationship requirements for the intended/commissioning parent/s and there may be a prohibition on traditional surrogacy (as is the case in Victoria).

Surrogacy arrangements can only be altruistic and non-commercial

All across Australia, commercial surrogacy arrangements are illegal. All surrogacy arrangements must be altruistic.

A surrogate or someone on her behalf cannot receive any payment or material benefit. Consequences for giving and receiving such a payment or material benefit include a fine, imprisonment or both.

Surrogate mothers can be reimbursed for prescribed expenses

Each State and Territory also have different rules for what a surrogate can be “reimbursed” from the intended parent/s.

For example, in Victoria, a surrogate is entitled to be reimbursed “prescribed costs” that are directly related to the surrogacy arrangement. These include:

• reasonable medical expenses not covered by Medicare and not covered by an existing private health insurance or other scheme;
• the surrogate’s counselling expenses;
• loss of earnings as a result of taking unpaid leave; or
• other out of pocket expenses like child care costs, travel and accommodation.

In simple terms, the surrogate and/or someone on her behalf, cannot end up in a better financial position than they were in before the surrogacy arrangement was entered into. If in doubt about whether or not a payment or a gift will be taken as commercial surrogacy, you should seek legal advice first.

Surrogacy arrangements are not enforceable or binding

Surrogacy arrangements are not enforceable or binding on the parties except for the reimbursement of expenses described above. If, upon the child’s birth, an intended parent/s chose not to take the child or the surrogate chose not to hand the child to the other party, neither party can enforce the surrogacy agreement. Steps may be taken in the Family Law Courts if a surrogate chose to not hand over the child.

Some states require the parties to have a written agreement but the terms of the written agreement are not enforceable. Parties may decide to enter into a written agreement to record the intention of all parties to the surrogacy arrangement. This can describe things such as the payment of expenses and the intention to apply for a Substitute Parentage Order (see below) once the child is born. Written agreements may assist all parties to remember what was discussed and agreed upon if there is later an issue and also use the negotiations to set expectations. Lawyers should draft the Surrogacy Agreement and provide you with advice about it before signing. 

Applying for a Substitute Parentage Order in Victoria

In Victoria, the Court has discretion whether or not to make a Substitute Parentage Order transferring the parentage from the surrogate (and her partner if she has one) to the intended parent/s.

The Court must be satisfied that certain conditions have been met, including that making the order is in the best interests of the child, the child was living with the intended parent/s at the time the application was made and the surrogate or anyone on her behalf did not receive payment of material benefit from entering into the surrogacy arrangement.

If for some reason, the Court refuses to make a Substitute Parentage Order, parties can consider their options in the Family Law Courts or formalise adopting the child.

The surrogacy process

Each State and Territory, and each IVF/Assisted Reproductive Treatment Clinic have their own process for surrogacy arrangements.

Generally speaking, you can expect the following:

1. The intended parent/s must qualify for surrogacy in their State or Territory.
2. The surrogate attends for a medical assessment.
3. All parties engage in counselling about the surrogacy arrangement.
4. The intended parent/s and surrogate and her partner (if any) each receive independent legal advice about the proposed surrogacy arrangement.
5. All parties are to be psychologically assessed.
6. Either the clinic or an external authority or committee approve the surrogacy arrangement before any embryo transfer can occur.
7. Once the child is conceived, the surrogate will have the legal right to make medical decisions regarding the pregnancy.
8. At birth, the surrogate and her partner will be listed on the child’s birth certificate and are legally the child’s parent/s (which means they have the legal right and responsibility to make decisions regarding the child and have financial responsibility for the child). The practical reality is that the child is handed over to the intended parent/s shortly after birth.
9. The intended parent/s will make an application to the relevant Court or Tribunal to transfer the parentage of the child from the surrogate and her partner (if any) to the intended parent/s. There are certain time limits within which this can happen. Once an Order is made, the child’s birth certificate will be amended with the intended parent/s names and they will have the legal rights and obligations that come with being a parent.

How we can help

Smith Family Law assist intended parents and birth parents/surrogate mothers navigate the legal requirements of surrogacy.