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Surrogacy Process and the Law in Australia

17 happy couple with their pregnant surrogate

Surrogacy is legal in Australia but there are various laws affecting surrogacy across our States and Territories. Many couples are so focused on having their child that they fail to consider some of the potential ramifications involved in the process.

If you’re considering a surrogacy arrangement, it’s important to seek local advice. Educate yourself on the processes and legal requirements and take your individual circumstances into account.

Surrogacy and the Law in Victoria

In Victoria, the Assisted Reproductive Treatment Act 2008 allows surrogacy for individuals and couples who may not be able to have children.

There are two types of surrogacy arrangements:

  • Altruistic
  • Commercial

Only altruistic (non-commercial) surrogacy arrangements are legal in Australia. Commercial surrogacy arrangements refer to a situation where the surrogate receives a payment, reward or any material benefit. These are legal in other countries, such as the USA, but not here.

However, in Australia, a surrogate is compensated by the parents for all medical and other reasonable expenses, including travel, parking, time taken off work, etc.

Legally drawn up surrogacy agreements are not mandatory in Victoria, as it’s difficult to anticipate every circumstance or contentious issue that may arise later. But some form of written agreement is recommended to ensure everyone’s intentions are clear and to help resolve any disputes later in the process.

Patient Review Panel

A clinic may only carry out treatment for surrogacy if the surrogacy arrangement has been approved by the Patient Review Panel. The panel approves the arrangement based on a number of factors being satisfied, including:

  • All parties receiving counselling and legal advice, including the parents, surrogate, surrogate’s partner (if applicable) and a donor, if involved
  • That the surrogacy arrangement is altruistic with no commercial benefits for any parties involved
  • Parents are infertile or unable to carry a baby or give birth (this includes social infertility such as a same-sex relationship), or there is a medical risk to the mother or baby if the commissioning mother was to become pregnant herself

The surrogate has to be at least 25 years old, have previously given birth to a live child and does not use her own eggs in the surrogacy arrangement. All parties will also have to complete a criminal record check and child protection order check.

Transferring Parentage

A woman who gives birth to a baby is initially recognised to be its mother and is recorded on the birth certificate as being so, while her partner (if applicable) is recorded as the father/other parent.

The commissioning parents of a child born under a surrogacy arrangement can apply to the Supreme or County Court for a substitute parentage order to transfer the legal parentage from the surrogate to the intended parents.

The application must be made after 28 days and before 6 months after the child is born. The court may make a substitute parentage order as long as:

  • It’s in the best interest of the child
  • The child is living with the intended parents
  • The surrogate freely consents
  • The surrogate didn’t receive any commercial benefit from the arrangement
  • The surrogacy arrangement was commissioned with the assistance of a registered clinic and approved by the Patient Review Panel

As of 2014, children born in non-commercial surrogacy arrangements can have their parentage legally recognised across every State and Territory except the Northern Territory, which does not have laws regulating surrogacy.

For more information about pregnancy, surrogacy or IVF treatment in Victoria, contact our clinic in Melbourne. Dr Alex Polyakov is a skilled practitioner with extensive experience helping couples and individuals become parents.