Can we do surrogacy with my friend who lives overseas? Can she travel to Australia to deliver the baby?

I have many people contact me to ask whether their friend or family member, who lives overseas, can be their surrogate under an Australian surrogacy arrangement. The short answer is ‘maybe,’ and ‘it depends.’

This is a post about Australian intended parents wanting to enter an arrangement with a family member or friend who lives overseas, and specifically where they hope their surrogate will travel to Australia for treatment and sometimes also for the pregnancy and birth.

If you are interested in entering an international surrogacy arrangement, you can find out more about destination countries and the options available.

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.

There are a number of variables that may mean that your international friend can be your surrogate under an Australian arrangement:

• If your friend has Australian citizenship, it may be viable for them to travel in and out of Australia for treatment and the birth.
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• If your friend lives in country with good surrogacy laws, there may be options for the surrogacy arrangement to occur under the laws of that country.

Some questions that you will need to consider when deciding whether you can, or should, enter a surrogacy arrangement with an international friend:

1. Will the treatment occur in Australia, and can my friend travel to Australia for treatment? Can our IVF clinic provide treatment?
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2. Will my surrogate birth in her country, or travel to Australia for the birth?
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3. What happens if my surrogate gives birth in her country? What are the processes and laws for having the baby recognised as our child and able to obtain Australian citizenship?
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4. What are the risks, for us, the surrogate, and the baby, of her being pregnant and giving birth in that country, or trying to travel to Australia for the birth?

And some basic information for you to consider:

South Australian and Northern Territory surrogacy laws include requirements for all the parties – intended parents and surrogates – to be Australian citizens or permanent residents in Australia.

Victoria and Western Australia surrogacy laws require the embryo transfer to occur within the home state, or else the intended parents may not be able to get a parentage order.

International visitors on temporary visas may not qualify for any Medicare rebates for treatment in Australia. If it is a legal and viable option for your surrogate to travel to Australia for the birth, will you be able to afford to pay for all her medical and other expenses?

Visas to travel to Australia are not available for medical treatment that involves a surrogacy arrangement. Most arrangements I have assisted with for an international surrogate involved a surrogate who was an Australian citizen. Travel for an Aussie surrogate to return home for the birth is a viable and legal option – but logistically may still be challenging.

Tourist visas are not an option if the traveller expects to need medical attention during their visit.

Commercial surrogacy is illegal in Australia. Is your altruistic surrogate willing to travel to Australia, with or without her children, away from her home and her job and support networks, to deliver your baby in Australia?

A parentage order made in Australia is unlikely to be recognised in another country. A child born in another country may have a birth certificate issued listing the surrogate as the legal parent.

Intended parents may have difficulty travelling home to Australia with their baby if the surrogacy arrangement is not recognised in that country.

Some countries, including Australia, have anti-trafficking laws that seek to protect people – particularly women and children – from human trafficking. A surrogacy arrangement that involves an unpaid woman travelling away from her family and staying in Australia for the purpose of a surrogacy arrangement, entirely dependent on the intended parents for medical and other expenses and on a visa that prevents her from working has some indicators that may be considered to be human trafficking.

If you believe your proposed arrangement is a viable option, you should get legal advice early. You can book in for a consult with me below, and check out the legal services I provide. I also recommend that the parties speak to a migration agent for advice about visas and travel in and out of Australia.

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.