Surrogacy Laws in Australia

Surrogacy Laws in Australia

What are the laws for surrogacy Down Under?  While assisted reproductive regulations differ throughout the world, the whole legality of the agreement revolves around where the intended parents and surrogate live. Having intended parents in Australia and a surrogate in the United States may seem confusing with all the different laws in each state, but our in-house attorneys are familiar with the process and can guide international intended parents through every step of the way.

Generally, for most of Australia, the only type of legally recognized surrogacy is altruistic surrogacy. This is when the surrogate mother does not receive a fee, but intended parents pay for all related medical expenses. Also, intended parents cannot advertise for a surrogate. Usually intended parents then have to rely on an offer from a family member or close friend to carry their child.

Commercial surrogacy is not permitted within Australia. The only exception to this is that there are no laws in the Northern Territory regarding surrogacy, but because of certain prohibitions only traditional surrogacy is allowed here.  Egg donation in Australia can only be compensated out of pocket, and overseas egg donation is punishable, but can be done legally if the right steps are taken. In some states it’s illegal to go overseas for surrogacy, but in others such as Southern and Western Australia, approval needs to be granted from the State Attorney-General.

Parentage laws for surrogacy, if any are explicitly stated, can vary between Australian states. For example in Queensland’s Surrogacy Act of 2010 it is stated that a surrogate will be presumed upon birth to be the parent of the child as well as any partner of the surrogate mother. The surrogate must register the birth of the child officially at the Registry of Births, Deaths, and Marriages. Intended parents will then obtain a parentage court order to transfer parentage. Intended parents will then re-register the child with themselves as the parents.

In the Surrogacy Act of 2010 intended parents must also obtain a surrogacy guidance report.  This is from an independent counsellor after the child is born and will be psychiatrist, physiologist, or social worker. This person also cannot be the counselor that was spoken to before entering the surrogacy agreement. 

Surrogacy with both the surrogate and intended parents living in Australia can be limiting with only altruistic surrogacy, not being able to advertise for a surrogate, and having to transfer parentage.  Because of this many, couples turn to international surrogacy. When there is a surrogacy agreement that takes place overseas, the child is able to obtain Australian citizenship as this is usually planned in advance.

With Australian’s mainly focusing on surrogacy arrangements abroad, couples have gone to places like Thailand where surrogacy agreements lack regulation. In 2014 the Baby Gammy case came to light where Australian intended parents had twins through a Thai surrogate. When it was discovered Baby Gammy had Down Syndrome, the intended parents left him with the surrogate in Thailand and caused a media uproar.

Now, the Chief Justice of the Family Court wants to change Australia’s anti-commercial surrogacy policy. Justice Bryant states, “If we allow it in Australia, we then can regulate it and ensure that it’s done on ethical terms.”

For now, many Australian intended parents have surrogacy arrangements abroad in the United States, because of legalities that protect intended parents, the surrogate, and the child, as well as an all-around supportive environment for surrogacy. Circle has helped many Australian parents build their family through surrogacy. We can provide guidance and help you connect with an Australian attorney, allowing you to pursue a surrogacy journey and safely return home with your children.

Learn more about why you should consider surrogacy in the United States.