Are NSW parentage orders available for children born via international surrogacy?
Recent changes in NSW with the introduction of the Equality Act may mean that intended parents who had their child via international surrogacy can apply for a NSW parentage order. The Equality Act makes several changes to the NSW Surrogacy Act. Note that these laws have not yet commenced but as at November 2024, are expected to within the next 6 months.
New South Wales surrogacy laws are still being reviewed, and further changes are hopefully in the pipeline. You can read about current NSW domestic surrogacy laws.
The recent changes have not removed the prohibition on commercial surrogacy for New South Wales residents, despite campaigning for this to happen. However, intended parents who have had their child via surrogacy overseas can now consider applying for a parentage order in the New South Wales Supreme Court, to officially recognise themselves as the parents of their children. This provides some much-needed clarity for everyone involved, most especially for the children.
There are also provisions for NSW parentage orders to be made for children to be born via international surrogacy in the future. However, for children born beyond 1 July 2025, their parents will need to have completed pre-surrogacy requirements in Australia including counselling and legal advice. If this is not completed, they may still make an application for a parentage order but will need to satisfy the Court that exceptional circumstances apply.
Do we really need a parentage order in Australia?
Until now, it has not been possible to obtain a parentage order in Australia for children born via international surrogacy. This means that there are question marks about the parentage of these children, because our laws do not necessarily recognise international surrogacy or parentage documents. This has led to much confusion and anxiety for intended parents returning to Australia with their baby, particularly in cases where one intended parent is not named on the birth certificate.
If you have had, or are expecting a child through international surrogacy, or are planning an international surrogacy arrangement, you might consider applying for a parentage order in New South Wales in the future. You need to get legal advice before making that decision. As the laws are very new, we will need to wait and see how the Courts respond to such applications.
Can we apply if we don’t live in New South Wales?
Yes. The legislation allows the Court to dispense with the requirement that the intended parents live in NSW. However, this relies on the Court’s discretion. You need to get legal advice about your particular circumstances.
Sarah can assist with this decision – book in for an appointment below, or contact Sarah.
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself.
Sarah has published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.
Looking for a surrogate and not sure where to start? We Need a Surrogate – What’s Next? And if you have a surrogate or intended parents, you can get started on the surrogacy process.
You can read a broad overview for surrogacy in Australia and how it works.
You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Surrogacy Podcast. You can also book in for a consult with me below, and check out the legal services I provide.
Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF mum, an egg donor and a traditional surrogate, and I delivered a baby for two 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.
