Surrogacy Across Borders

Surrogacy laws in Australia are governed independently by each State and while there are some similarities between the State laws, unfortunately, there are key differences which can confuse and complicate the process.  If your surrogacy arrangement has some connection to more than one state or country, multiple laws may apply to you.

The Surrogacy Act 2010 NSW (“the Act”) recognises surrogacy arrangements as long as particular conditions are met. In NSW, a surrogate birth mother can therefore enter into an arrangement with the intended parents providing that their agreement does not involve payment to the birth mother. The intended parents can then apply to the Court for an order to transfer the parentage of the child. The effect of that Court order is that the intended parents have full parental responsibility for the child, to the exclusion of the birth mother, and this is reflected on the child’s birth certificate, which will then register the details of the intended parents.

Some of the requirements for obtaining a parentage order in NSW include:

1. The surrogacy arrangement must be altruistic. Commercial surrogacy arrangements are not permitted in Australia.

2. There is evidence of a medical or social need for the surrogacy arrangement;

3. The surrogacy arrangement is in place prior to conception of the child.

4. Prior to entering the surrogacy arrangement, the parties obtain independent legal advice and counselling about its social, psychological and legal implications. Multiple counselling sessions are required throughout the surrogacy process;

5. The birth mother is at least 25 years old and the intended parents are at least 18 years old when they enter into a surrogacy arrangement.

6. The intended parents should apply to the Court for a parentage order, not less than 30 days, and within 6 months after the child’s birth. All affected parties must consent to the making of the parentage order and the child must be living with the intended parents at the time of the hearing;

7. The Court requires an independent counsellor’s report in support of making the order and will only make the order if it determines that the proposed order is in the best interests of the child;

8. Information has been provided for inclusion in the Central Register and the child’s birth has been registered correctly.

It is important for people to obtain independent legal advice as early as possible, well before the conception of a child, to ensure that the pre-conditions to obtaining a parentage order are met and to allow time to review the potential impact of multiple State laws which may apply.