Surrogacy Laws Australia

Are you exploring your options for growing your family through surrogacy? Below is an overview of Australian surrogacy laws as they stand today.

Surrogacy in Australia is regulated in each State, which means there is no uniform law that covers surrogacy across the country. Surrogacy laws in all States follow the same basic principles:

·   The Intended Parents must not be able to either conceive or carry a baby themselves, or if they can, to do so would be risky. Read more about qualifying for surrogacy. You should check the laws in your State to see who can access surrogacy, as this varies State to State.

·   The surrogate maintains her bodily autonomy throughout the pregnancy. The parties might have agreements about pregnancy and birth plans, however the surrogate is able to make the final decisions when it comes to her body – even if it affects your baby.

·   The surrogacy arrangement must be altruistic. Commercial surrogacy is illegal in all States in Australia. This means the surrogate and her partner cannot be paid for carrying a baby for someone else.

·   Whilst surrogacy is altruistic, the intended parents must cover the surrogate’s expenses in relation to surrogacy, pregnancy and birth. Read more about the cost of altruistic surrogacy.

·   When the baby is born, the birth is registered in the State where the baby is born, with the surrogate and her partner listed as the baby’s parents on the Birth Certificate. After the birth, the Intended Parents can apply to the Court for a Parentage Order (also called a Substitute Parentage Order) in the State where they live. The Order transfers parentage from the birth parents (the surrogate and her partner) to the intended parents. The Birth Certificate is then re-issued with the new parents listed, instead of the surrogate and her partner.

The applicable laws are those in the State where the Intended Parents live. The chart below shows the laws as they apply in each State.

surrogacy law


You can read more specific information about surrogacy laws in each State on the Blog, under the category of ‘surrogacy laws’ or by searching by your State.

Surrogacy arrangements in Australia are regulated by State legislation. If you have a child born through international surrogacy arrangements, the Commonwealth Family Law Act applies.

The intended parents and the surrogate and her partner must obtain independent legal advice from separate lawyers. If a written agreement is required, parties might draft their own agreement, but it is not valid unless a lawyer has provided advice and all parties have signed the Agreement.

In all States, everyone should obtain independent legal advice before attempting to become pregnant. This applies to both gestational and traditional surrogacy arrangements.

If you are considering international surrogacy, read more about overseas surrogacy.

Make sure to download your free copy of the Surrogacy Handbook to find out more about the processes and laws in Australia.

Contact Sarah below and have a chat about how the Australian surrogacy laws affect you and to explore your options.

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.

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