Legal Guide to Surrogacy in Australia


Are you an Australian citizen who is planning to have kids? For those who want to start a family, but are being impeded legally or physically, surrogacy may be a good option. Many Australians have turned to surrogacy for reasons such as reproductive disorders, repeated miscarriages, or even same-sex marriages.

Surrogacy can work for you, given that you meet the guidelines set by law. Given that this is not a light decision to make, it’s best to know everything you can about surrogacy. Let’s explore surrogacy and its legal implications in Australia.

Surrogacy Basics

A surrogate mother may conceive either via the gestational or the traditional method. A gestational surrogacy involves the creation of an embryo, using the sperm and the egg of the parents. The embryo is then inserted into the uterus of the surrogate mother, who will house the baby in her womb throughout the pregnancy period. Meanwhile, in a traditional surrogacy the surrogate mother donates an egg cell. A doctor takes the sperm of the father, and injects it into the surrogate for conception.

Whichever form of surrogacy is used, commercial surrogacy is considered illegal in Australia. Surrogate mothers are prohibited by law from receiving any payment for conceiving, carrying, and giving birth to the child, aside from medical and living fees incurred during the pregnancy. The only exception here is if the arrangement is carried out in the Northern Territories, but only because there are no surrogacy laws there.

States and territories may also have different guidelines on various aspects of surrogacy, such as eligibility. In some states, the punishment for overseas surrogacy can go up to three years of imprisonment, as well as 2500 penalty units. Even then, it seems like Australian couples have found a loophole: making surrogacy arrangements overseas. According to the Human Rights Law Center, among those who settle for surrogacy arrangements internationally, Australians number the most. This can raise some issues surrounding the citizenship of the child, though.

Legislation on parentage may also differ across various states and territories. For instance, in Queensland, a surrogate mother is considered the natural mother of the child, and the intended parents will have to get a court order for the lawful transfer of parentage.

To make sure that your plans for surrogacy are within the bounds of the law, you may seek advice from your lawyer.


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