Do I qualify for surrogacy in Australia?

The first step when determining whether, as an intended parent, you qualify for surrogacy in Australia, is to work out which laws apply to you. The laws of the State where the intended parents live apply, even if their surrogate lives in another State. For example, NSW intended parents rely on the Surrogacy Act 2010 NSW, even if their surrogate lives in Tasmania.

The criteria for surrogacy in most States in Australia are the same – the intended parents must have a medical or social need for surrogacy. There are generally three categories of people this applies to:

  1. Single men or same-sex male couples;
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  2. Women and opposite-sex couples where the woman does not have a uterus. This might be because of MRKH (born without a uterus) or hysterectomy due to cancer treatment, endometriosis, or a traumatic birth or miscarriage.
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  3. Women and opposite-sex couples where the woman does have a uterus, but for any reason she cannot carry, or should not carry a pregnancy to term because of the risk to herself or the baby. This might be, for example, because she has a chronic health condition and the medication she is on is incompatible with pregnancy. Or it might be that she has problems growing sufficient uterine lining to carry a pregnancy. There are many reasons, and all of them are medical – which means they need a doctor to verify that she qualifies for surrogacy.

If you are in a lesbian couple, both women must be unable to conceive or carry a baby to term in order for both members of the couple to qualify for surrogacy. Egg-sharing, where one woman in a couple provides her eggs, whilst her partner carries the baby, is not surrogacy and is simply another way of creating a family.

Unfortunately, the surrogacy laws are not consistent, so not everyone that falls into one of the above three categories qualifies for surrogacy. In Western Australia for example, single men and same-sex male couples cannot pursue surrogacy, which means they must relocate interstate or pursue surrogacy overseas. We are optimistic that law reform is coming soon to WA that will allow access to everyone.

In South Australia, same-sex male couples can qualify for surrogacy, but single men and single women do not. Law reform is also expected in South Australia shortly.

In the Northern Territory, there are no surrogacy laws, which means no one really qualifies for surrogacy as there are no laws that allow it or prohibit it. We are hoping laws will be introduced in the coming years.

If you are a woman who has a uterus and suffered with infertility, surrogacy is one option but it must be the last option. For many women and opposite-sex couples, infertility can be treated in a vast number of ways, including different treatment protocols or with donor gametes. You may need to consider the use of donor eggs or sperm before you consider surrogacy. This might seem unfair (infertility is really unfair) but surrogacy must be the last option if there is any chance that you can carry a baby yourself. If your doctor has not raised the option of surrogacy with you, then ask them if it is something that you should be considering. Remember, altruistic surrogates want to carry for someone who cannot carry themselves – if there is a chance that you can carry yourself, then that option needs to be exhausted first.

A medical need for surrogacy might also include psychological need, for example where a woman suffers with tokophobia (fear of pregnancy). Trans men may qualify for surrogacy on the basis of body dysphoria. The individual decision and assessment needs to be made between the person, their family and their medical practitioners.

If you believe that you qualify for surrogacy, the next step would be to discuss your options with your fertility specialist and consider how you might find a surrogate in Australia.

Hi! I’m Sarah Jefford. I’m a surrogacy, fertility and family lawyer. I’m also an IVF Mum, an egg donor and a traditional surrogate, and I delivered a baby for her Dads in 2018.

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.