what is surrogacy law in Australia?
Under common law in Australia, the woman who gives birth to a child and her partner are presumed to be the parents. Of course, this isn't always the case, specifically when the birth mother is a surrogate.
Surrogacy laws in Australia are complex and vary between states and territories. It is essential for those looking to enter into a surrogacy agreement to access quality, up to date legal advice.
Our experienced family law specialists in Wollongong can help you navigate the laws and processes applicable to surrogacy.
Types of Surrogacy
Surrogacy refers to an arrangement made where a woman carries and delivers a baby for another person or couple. Once the child is born, the intention is to transfer the child's legal care to the intended parents.
This can occur under a number of arrangements with different legal consequences:
• Traditional surrogacy - The birth mother provides an egg and is impregnated (generally through artificial insemination) with the sperm of a donor or the intended father.
• Gestational surrogacy - The birth mother is implanted with a fertilised embryo from IVF using egg and sperm from a donor or the intended parents. This is the most common type of surrogacy in Australia.
• Commercial surrogacy - A surrogacy agreement in which the birth mother receives payment, reward or material benefit. Commercial surrogacy is illegal in Australia.
• International surrogacy - Australians are some of the largest users of international surrogacy. International surrogacy is illegal in NSW and can create legal conflicts, placing the legality of the parents and citizenship of the child in jeopardy.
Surrogacy in Australia must be altruistic. The intended parents can reimburse the surrogate for out of pocket expenses only, such as medical costs, time off work and travel costs.
Surrogacy agreements are not legally binding in Australia but serve as important evidence of an agreement and of each party's expectations and intentions. It's also important to note that the surrogate makes all clinical decisions during pregnancy, labour, birth and the postpartum hospital period. The intended parents have no rights at this stage.
In NSW, an application for a parentage Order must be made 30 days after the birth of the child and before the child reaches six months of age. The intended parents must meet a number of criteria to be eligible for a parentage Order, including residency, age, consent and proof of legal advice.
If you require independent legal advice regarding surrogacy, we can help you.