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Is Surrogacy Legal In Australia?

surrogate mother

Surrogacy is a complex topic that has gained significant attention in recent years. It is a reproductive method that involves a third party, known as a surrogate, carrying and giving birth to a child on behalf of intended parents. While surrogacy offers hope and an opportunity for individuals and couples struggling with infertility or other medical conditions, its legal framework varies across countries.


The laws regarding surrogacy in Australia are governed by individual state and territory legislation. This results in different legal frameworks across the country. Overall, surrogacy is legal in Australia, however, it is regulated to protect the interests of all parties involved, especially the surrogate, the intended parents, and the child.


In Australia, surrogacy laws emphasise altruistic surrogacy, where the surrogate does not receive any financial benefit beyond reimbursement for reasonable expenses directly related to the surrogacy arrangement. Commercial surrogacy, where the surrogate is compensated beyond reasonable expenses, is generally prohibited.


Sections 60H and 60HB of the Family Law Act 1975 also recognise a child born under surrogacy arrangements. On the other hand, adoption is for people who legally own another child and raise them as their own. However, this will require the intended parents to seek consent from the child’s biological or legal parents.

A surrogate, also known as a gestational carrier, is a woman who carries and gives birth to a child on behalf of another individual or couple. There are two main types of surrogacy: traditional surrogacy and gestational surrogacy.


Traditional surrogacy involves the use of the surrogate’s own eggs, making her the biological mother of the child. This method is less common and can raise legal and emotional complexities due to the genetic connection between the surrogate and the child.


Gestational surrogacy, on the other hand, is the more prevalent form of surrogacy today. It involves the implantation of an embryo created using the eggs and sperm of the intended parents or donors into the surrogate’s uterus. In this case, the surrogate has no genetic link to the child, as the embryo is created using either the intended parents’ genetic material or that of donors.


What Is Altrustic Surogacy?


Altruistic surrogacy is the primary form of surrogacy legally practised in Australia. It is based on the principles of compassion and support without financial gain. In altruistic surrogacy arrangements, the surrogate undertakes the pregnancy and childbirth process solely to help the intended parents fulfil their dream of having a child.


In Australia, the altruistic surrogacy process involves stringent legal requirements to protect all parties involved. Before entering into a surrogacy arrangement, the intended parents and the surrogate must undergo counselling and obtain independent legal advice. They must also undergo medical and psychological assessments to ensure their suitability for the process.


Once all the necessary requirements are met, the intended parents and the surrogate enter into a legal agreement outlining their respective rights, responsibilities, and expectations. This agreement clarifies important aspects such as parental rights, financial arrangements, and the surrogate’s role during pregnancy and childbirth.


What is Commercial Surrogacy?


Commercial surrogacy involves a financial agreement between the intended parents and the surrogate, where the surrogate receives compensation beyond reasonable expenses associated with the surrogacy journey. This form of surrogacy is generally prohibited in Australia, except in specific circumstances.


Commercial surrogacy is a topic of ethical and legal debate in many countries. Critics argue that allowing financial compensation commodifies the surrogacy process and may exploit vulnerable women. Proponents of commercial surrogacy argue that it provides an opportunity for women to make informed decisions about their bodies and exercise their reproductive autonomy.


In Australia, the prohibition of commercial surrogacy aims to protect the rights and well-being of all parties involved. By emphasising altruistic surrogacy, the Australian legal system seeks to ensure that the motivation behind surrogacy arrangements is driven by care and support rather than financial gain.

Surrogacy Laws In New South Wales

The Surrogacy Act 2010 in New South Wales (NSW) outlines the regulations for surrogacy arrangements. To enter into a surrogacy arrangement in NSW, the following criteria must be met:


  • The intended parents must be residents of New South Wales and be at least 25 years old;
  • The surrogate must be at least 25 years old.

The surrogacy arrangement should not involve any commercial aspects, and any payments made should only cover the expenses directly associated with the pregnancy. Additionally, the surrogacy must be gestational, which means that the surrogate should not have a genetic relationship with the child.


Both intended parents and surrogates are allowed to advertise their interest in surrogacy, however, it is crucial that no fees have been paid for any advertising undertaken.


Surrogacy, whether altruistic or commercial, offers hope to individuals and couples struggling with infertility or other medical conditions. In Australia, surrogacy is legal, with a strong focus on altruistic surrogacy arrangements. While the laws and regulations surrounding surrogacy vary across the country, the primary objective is to protect the rights and well-being of the surrogate, intended parents, and the child.


Altruistic surrogacy, based on the principles of compassion and support, allows individuals and couples to fulfil their dream of having a child while maintaining a strong legal framework to protect everyone involved. Commercial surrogacy, where financial compensation is involved, is generally prohibited in Australia to safeguard against potential ethical concerns.


As surrogacy continues to evolve, it is essential to strike a balance between the desires of individuals and couples seeking to become parents and the ethical considerations surrounding the practice. By understanding the legal framework and different forms of surrogacy, we can engage in meaningful discussions about this complex and sensitive topic, ultimately aiming to ensure the best interests of all parties involved.


If you need further advice regarding surrogacy, be sure to contact one of our family lawyers in Sydney. Our commitment lies in offering individualised legal advice that is specifically designed to suit your unique situation. Should your circumstances advance to the judicial system, our skilled team is ready to provide exceptional legal representation, ensuring your interests are supported and advocated for.

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