Surrogacy refers to an arrangement made under which a woman (birth mother or surrogate) carries and delivers a baby for another person or couple (the Intended Parents).

Once the baby is born, the intention is for he/she to be permanently transferred into the care of the Intended Parents.

It is important to note that during pregnancy, labour, birth and during the post-partum hospital period, all clinical decisions about the birth mother and baby are to be made by the birth mother/parents. The Intended Parents have no rights at this stage.

Types of Surrogacy

Gestational surrogacy

The birth mother makes no genetic contribution to the baby. She is implanted with a fertilised embryo resulting from IVF using egg and sperm from the Intended Parents or a donor. There is no genetic relationship between the surrogate and the child.

This is the most common type of surrogacy in Australia.

Traditional surrogacy

The birth mother provides the egg and is impregnated (usually through artificial insemination) with the sperm of the Intended Father or from donor sperm.

While the birth mother is genetically the child’s mother, under the terms of the surrogacy agreement she transfers her legal rights of parentage over the child to the Intending Parent/s.

Commercial Surrogacy

Commercial Surrogacy arrangements are illegal in NSW and it is an offence to enter into one. They are characterised by payment, reward or material benefit to the surrogate. This prohibition has seen Australians engage overseas surrogates in countries where commercial surrogacy agreements are allowed.

International surrogacy

Australians are the largest users (accounting for 25%) of cross-border surrogacy in the world. International surrogacy is a minefield of conflicting laws which can mean that, despite the best intentions of the parties, the child is not recognised as having either legal parents or citizenship. The legal conflicts may take years to address and, in the meantime, the child remains in limbo in the country of birth. A full discussion of the issues, illustrated with real cases is available in this paper by Professor Mark Henaghan.

Altruistic surrogacy 

Altruistic surrogacy – when a surrogate is given no financial gain for carrying a child – is permitted in Australia. The Intended Parents are allowed to reimburse the surrogate for out-of-pockets expenses only. Such expenses would include all costs as a result of trying to become pregnant, pregnancy and recovery. For example:

• Medical costs of the surrogate and the baby (excluding those recoverable under Medicare or private health insurance).
• All costs of counselling and legal advice for the surrogate.
• Time off work (including the surrogate’s partner) to attend appointments.
• Lost earnings during the pregnancy if unable to work on medical grounds and also up to 2 months in the period around the time of birth.
• Insurance premiums for private health cover and disability or life insurance for the surrogate.
• Any reasonable travel or accommodation costs associated with the pregnancy or birth.
• Reasonable costs associated with transferring parentage (attending court dates etc).

Can I advertise for a surrogate in NSW?

Advertising for altruistic surrogates in NSW is permitted provided that you do not pay for it. Advertising for free is available on internet forums.

What is the law on Surrogacy Agreements?

Surrogacy agreements are not legally binding in Australia because, at law, the birth mother is considered the mother of the child even without a genetic connection to the child. Although the surrogacy agreement itself is not enforceable, it serves a number of important functions:

• The obligation within it to reimburse the birth mother’s expenses is enforceable (unless the surrogate does not relinquish the child, or does not consent to a parentage order).
• A written, signed surrogacy agreement is required before a parentage order can be applied for.
• A surrogacy agreement is also important to define each party’s expectations and intentions from the outset.
• It would also serve as important evidence in the rare event that the surrogate subsequently changes her mind.

When to apply for a parentage order?

The application must be made 30 days after of birth but before the child reaches six months. If applied for outside of this period, it is at the court’s discretion to grant a parentage order.

How to obtain a parentage order?

In order to transfer parentage to the Intended Parents, you will need to apply for a parentage order. The following criteria must be met to be eligible for a parentage order:

1. Residency – Intended Parents must be resident in NSW at the time of the hearing of the application.
2. Form of surrogacy agreement – The surrogacy arrangement must be in the form of an agreement in writing, signed by the surrogate, her partner (if any) and the Intended Parents.
3. Information about surrogacy to have been registered – All information about the surrogacy arrangement that is registrable information must have been provided to the Director-General of the Department of Health, for entry in the central register kept under that Act.
4. Counselling – The surrogate and the Intending Parents must have had independent counselling with a suitably qualified infertility counsellor, psychologist, psychiatrist, or social worker prior to entering an agreement.
5. Legal Advice – The surrogate and the Intending Parents must have had independent legal advice from different legal representatives before entering an arrangement and after the birth of the baby.
6. Consent – The surrogate must provide consent to the parentage order, free from coercion by the Intended Parents.
7. Age – The surrogate must be at least 25 years of age when entering into a surrogacy arrangement. The Intended Parents may be 18 years or older when entering into a surrogacy arrangement provided that the court is satisfied of the sufficient maturity of an Intended Parent under the age of 25 years.

How can we help?

If you are looking for information or help regarding surrogacy, we can help you navigate the process.

Our health and relationship teams are uniquely placed to provide you specialist knowledge accumulated over 25 years. We can assist you by providing expert advice and legal support whether in relation to the clinical aspects or the parentage issues of surrogacy.

Our team can assist you by providing expert advice and legal support regarding your options. Contact us today on (02) 4929 3995 or info@catherinehenrylawyers.com.au or visit  www.chpartners.com.au

*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.