Surrogacy

The parties seeking the surrogate (you and your spouse) cannot use the same lawyer as the surrogate. This ensures that both parties’ interests are independently protected and guarantees the surrogacy journey is fair and equitable for all parties.

An altruistic surrogacy is a surrogacy arrangement where the birth mother does not receive payment for carrying your child. Altruistic surrogacies are the only surrogacy arrangements that are legal in Australia.

A surrogacy arrangement is commercial if the birth mother receives payment, reward or other benefit other than the reimbursement of the birth mother’s surrogacy costs. Examples of surrogacy costs which are allowed to be paid to the birth mother are:

- Reasonable medical costs for the birth mother’s attempts to become pregnant (for example, doctors’ appointments);
- Any insurance premiums payable for health, disability or life insurance that are only required because of the surrogacy arrangement;
- Reasonable costs of counselling associated with the surrogacy arrangement (before and after the birth);
- Reasonable legal cost for the birth mother and her spouse (if she has one) relating to the surrogacy arrangement and the transfer of parentage;
- The value of the birth mother’s lost earning because of leave taken that related to the pregnancy; and
- Other reasonable costs such as travel expenses.

Any other payments made outside the above descriptions may result in your surrogacy arrangement being deemed illegal. If a child is born as a result of an illegal commercial surrogacy in Australia, the Childrens Court will not be able to make a parentage order.

A parentage order is a court order transferring parentage from the surrogate and her partner to the intended parents as part of their surrogacy arrangement.

A surrogacy agreement is an agreement entered into by the birth mother and her partner (if she has one) and the intended parents. The agreement will eventually be included with the intended parents’ application to the court for a parentage order. A surrogacy agreement should not be entered into until:

- The birth mother (and her partner if she has one) receive independent legal advice;
- The intended parents receive independent legal advice;
- The birth mother (and her partner if she has one) receive counselling; and
- The intended parents receive counselling.

It is important to note that surrogacy agreements are not legally enforceable, and can only be entered into before the surrogate becomes pregnant.

The birth mother has the same rights to manage her pregnancy and birth as any other pregnant woman. This means that even if the surrogacy agreement states the birth mother is to manage the pregnancy in a certain manner, this is not legally binding and she may make decisions that are not listed in the agreement.

After the birth, the surrogate and her partner (if she has one) are considered the legal parents of the child. For you to be considered the legal parents of the child, you need to apply to the Childrens Court for an order which states you are the legal parent of the child. This is known as a parentage order. In Queensland, you cannot apply for a parentage order until the child is born.

You can make an application for a parentage order to the Childrens Court when the child is between 28 days and six months old.

What the court considers most important is the wellbeing and bests interests of the child born as a result of the surrogacy arrangement, both throughout childhood and for the rest of the child’s life. The judge aims to ensure a child born of a surrogacy arrangement is to be cared for in a way that:

- Ensures a safe, stable and nurturing family and home life;
- Promotes openness and honesty about the child’s birth parentage; and
- Promotes the development of the child’s emotional, mental, physical and social wellbeing.