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.
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options. You can also read a broad overview of surrogacy in Australia.
You can also purchase my book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.
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.
New South Wales 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, surrogacy arrangements in New South Wales 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.
You can read about the steps to follow once you have a surrogate, or consider what you need to do to find a surrogate.
If you are considering becoming a surrogate, you can read more about that here. If you would like to know more about how surrogacy works in Australia and New South Wales, you might like to download the Surrogacy Handbook, or book in for a consult with Sarah below. You can also hear stories from intended parents and surrogates on the Surrogacy Podcast.
If you’re from another state, you can find all the details of the surrogacy laws that apply to you.
Sarah is the only lawyer in Australia practising exclusively in surrogacy and donor conception, or ‘family creation’ law. Sarah has been a surrogacy lawyer for many surrogacy arrangements in Sydney, Wollongong, Newcastle, Port Macquarie and across New South Wales.
Sarah can assist with surrogacy arrangements across all states, including New South Wales and cross-border arrangements. You can contact me here. All consults are conducted over Zoom and email. You can book in for a consult with me below, and check out the legal services I provide.