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 and risks associated with surrogacy, and the process they will need to follow once the child is born so as to be recognised as having parental responsibility for the child.
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, new legislation which has come into force, the Surrogacy Act NSW 2010, makes it a criminal offence for any NSW resident to enter into a commercial surrogacy arrangement locally or internationally. In general, commercial surrogacy is prohibited throughout Australia.
These arrangements involve a surrogate mother who has agreed to the arrangement out of her own goodwill, without being paid for her services. While these arrangements are not prohibited in Australia, these arrangements cannot be enforced.
This means that upon the birth of the child, the surrogate mother is not obliged to hand over the child. In this instance, the non-birth parents would need to apply to the Courts for orders giving them parental responsibility for the child and for the child to live with them.