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Surrogacy is the arrangement where a woman (the surrogate) agrees to carry a baby for another person or persons.  Once the baby is born, the surrogate transfers parentage of the baby to that person or persons.  Surrogacy is an emotionally exhausting time for the intended parents and the surrogate.  The process has potential for many legal and moral complexities.

If you are coming to believe that surrogacy may be for you, it is important to understand the risks, obligations and demands that the process will place on you, your partner, if any, and your surrogate.  You should do this before you embark on the process.

In this article, we outline the broad legal processes that you will need to follow to comply with the law.  The legal issues are only one part of the overall picture. You will need to discuss the process with other professionals such as counsellors and with reputable organisations such as IVF Australia.

The First Step

There are many forms of surrogacy that are undertaken in Australia including international surrogacy arrangements.  Owen Hodge Lawyers do not deal with international surrogacy arrangements. Commercial surrogacy arrangements are illegal in NSW.

You will need to go to a reputable surrogacy organisation, such as IVF Australia.  Reputable surrogacy organisations have strict criteria for both the intending parents and the proposed surrogate.  These criteria are there to reduce the risks to all parties.  If, therefore, you are deemed not to fulfill the necessary criteria, then it is important to seriously consider whether surrogacy is the route for you.  If you have been accepted into a reputable surrogacy programme, then the legal process can begin.

Surrogacy Arrangement

The law states that a surrogacy arrangement is not legally enforceable.  That means you cannot force a mother to give up her child even if she has agreed to do so.  Despite this, you must have a surrogacy agreement in writing signed by all the parties.  A written agreement is a precondition for the court to transfer parentage of the child from the surrogate to the intended parents.

The law defines a legal mother as the woman who gives birth to the child.  Consequently, it is important to note that your surrogate will be the legal mother of the child when it is born regardless of any surrogacy arrangement or agreement that is in place.

The Register

Once the surrogacy arrangement has been made, if the parties are planning to use donated gametes, then  all information that is able to be registered, must be provided to the Director – General of the Department of Health for inclusion in the central register kept under the Assisted Reproductive Technology Act 2007.

Parentage Order

Once the baby is born, the intended parents can apply for a parentage order from the court.  A parentage order legally transfers the parentage of the child from the birth mother to the intended parents. Under the law, the child’s birth parents and the child itself may apply to the court to have a parentage order discharged.  This would only happen in the most extraordinary of circumstances.

Generally, the application for a parentage order must be made no earlier than 30 days and no later than 6 months after the birth of the child.  A parentage order is not made by the court lightly, even if there is a surrogacy arrangement in place.

The law requires that birth siblings must be kept together.  Consequently, if your surrogate becomes pregnant with twins, then the court will only make a parentage order for both children.

There are many factors that the court considers when decided to make a parentage order including:

  • the best interests of the child;
  • that the birth mother must be at least 25 years old;
  • that the intended parents must be at least 18 years old;
  • that each party must freely and voluntarily consent to the order;
  • that the surrogacy arrangement must be in the form of an agreement in writing signed by all the parties;
  • that counselling must be obtained by all parties; and
  • that legal advice must be obtained by all parties.

This is not an exhaustive list and there are many other factors that the court will consider before making a parentage order.

Next steps

This article provides a very board outline of the basic legal processes surrounding a surrogacy arrangement.  There are many other factors that go toward a successful surrogacy arrangement including the trust that must be built between the surrogate and the intended parents.  On the legal aspects, Owen Hodge Lawyers would be happy to help. Call us today at 1800 770 780 or contact us ohl@owenhodge.com.au for a consultation with one of our experienced family lawyers.