Surrogacy & the legal process
Surrogacy laws in Australia vary in each state and are governed by state legislation. A high-level overview of the general legal position in Australia is summarised as follows:
Commercial surrogacy is prohibited. This means that a surrogate cannot obtain any material benefit for being a surrogate.
Altruistic surrogacy is legal. Your surrogate cannot be paid a fee for carrying your baby. However, you can reimburse your surrogate for certain expenses actually incurred. The specific expenses that can be reimbursed depend on the legislation in your relevant state.
Surrogacy agreements are not legally enforceable (except in relation to the reimbursement of a surrogate’s expenses as prescribed by state legislation).
You must engage a surrogacy lawyer and obtain independent legal advice about your proposed surrogacy arrangement (the intended parents need to engage one lawyer and the surrogate and her partner (if any) need to engage another).
Once baby arrives, the surrogate and her partner, if any, are legally recognised as the baby’s parents and their names appear as the birth parents on the baby’s birth certificate. The Intended parents must make a Court application for legal parentage to be transferred to them. The effect of this is to change the baby’s birth certificate so that the intended parents are named as the birth parents.
Nicole Russell is a specialist surrogacy and fertility lawyer advising heterosexual and LGBTIQ+ individuals and couples to achieve their dreams of becoming parents. Nicole provides specialist legal advice on all aspects of Australian and international surrogacy arrangements and fertility legal issues including the use and transport of donor gametes. Nicole is based in Melbourne and acts for clients in all Australian states and territories. Nicole is an IVF warrior and a mum through surrogacy in Australia.