Adoption & Surrogacy

The laws in Australia with respect to surrogacy vary between the States and Territories. Anyone considering surrogacy as an option should obtain legal advice from a specialist family lawyer about entering into a surrogacy arrangement, the legal issues relating to surrogacy, and the process they will need to follow once the child is born so as to be recognised as a parent.

Surrogacy arrangements generally fall within two broad categories:

Commercial surrogacy arrangements

A commercial surrogacy arrangement involves a birth mother (surrogate mother) being paid for her services by the non-birth parents, beyond being paid the reasonable costs of the surrogacy. 

In NSW, the Surrogacy Act NSW 2010, makes it a criminal offence for any NSW resident to enter into a commercial surrogacy arrangement locally or internationally. Commercial surrogacy is prohibited throughout Australia.

Altruistic surrogacy arrangements

These arrangements involve a surrogate mother who has agreed to the arrangement out of her own goodwill, without being paid for her services.  

In NSW, parties to an altruistic surrogacy arrangement must enter into a Surrogacy Agreement before the conception of the child.

After the birth of the child, the intended parents can apply to the Court for a parentage order. Such an order transfers the parental rights from the surrogate to the intended parents. There are various requirements which must be satisfied in order for a parentage order to be made, such as the parties to the arrangement must have obtained counselling and legal advice regarding the Surrogacy Agreement.