Surrogacy in New South Wales is regulated by the Surrogacy Act 2010. If you are an intended parent living in NSW, then the surrogacy laws that apply to you are those of New South Wales. This is the case, even if your surrogate lives in another State.
The criteria for surrogacy in NSW includes:
- That the intended parents have a social or medical need for surrogacy. This includes same sex male couples, and opposite sex couples who cannot conceive or carry a baby themselves.
- That the birth mother is over 25 years of age.
- Each of the intended parents must be at least 18 years of age; if either of them is under 25 then the Court must be satisfied that they are of sufficient maturity to understand the social and psychological implications of the making of a parentage order.
- That the arrangement is altruistic. The intended parents must cover the birth mother’s out of pocket expenses in accordance with the law. Commercial surrogacy is illegal.
- That the parties have undergone counselling about the arrangement.
- That the parties have obtained legal advice about the arrangement.
- There must be a written Surrogacy Agreement signed by all the parties.
NSW intended parents can seek IVF treatment outside NSW – there is no requirement that the treatment must occur on home soil. However, most other States have restrictions on whether their clinics can treat patients from interstate. Generally speaking, NSW residents can seek treatment in Queensland, and even overseas, and a NSW court will make a Parentage Order if the surrogacy arrangement satisfies all the other criteria. You should speak to a lawyer before pursuing treatment options outside of your State.
Women need not have had their own child before becoming a surrogate. However, whilst this is not a legal requirement, clinics and counsellors will still need to approve the arrangement.
It is not illegal to advertise for a surrogate in NSW, however any advertisement must only be for an altruistic surrogacy arrangement, and cannot be a paid advertisement. So, for example, you might post your story in a forum or on social media and seek an altruistic surrogate, but you must not pay for that advertisement.
It is illegal for NSW residents to enter into commercial surrogacy arrangements, even where those arrangements are overseas. There are penalties for entering into a commercial arrangement – as far as I am aware, there have been no prosecutions or convictions of any intended parents engaging in overseas commercial surrogacy.
If you would like to know more about how surrogacy works in Australia and New South Wales, you might like to download the Handbook, or book in for a consult with Sarah below.