What is Surrogacy? How does the law work in Australia?

Definition: Surrogacy

Surrogacy laws have become a matter of great contention following the news of baby Gammy, one of two twins conceived by Australian parents, who was left in the care of his Thai surrogate mother and suffering from Down syndrome and a congenital heart condition.


Surrogacy is an arrangement between a couple and a woman, whereby the woman carries and gives birth to a child for the couple. In Victoria, the parents intending to raise a child pursuant to a surrogacy arrangement must either be infertile, unable to carry of give birth to a baby or there must be a risk to the mother or baby if the mother was to become pregnant. The surrogate mother must be over the age of 25 and have previously given birth to a child.

A surrogate child can be conceived by two different methods. Firstly, the surrogate mother can be inseminated by the sperm of an intended parent or a third party, meaning that the child would have the surrogate mother’s DNA. Such surrogacy arrangements are not facilitated by IVF clinics in Australia but can be achieved using self-insemination procedures. Alternatively, sperm or ovum from the intended parents or from a third party can be used to create an embryo that is implanted in the woman to carry to term.

Unfortunately, nothing is simple when it comes to surrogacy arrangements. It is a complex area of law that is dependent on a number of factors including the arrangement between the surrogate and the intended parents and the state the parties live in.

What is the law surrounding Surrogacy?

Despite the method of conception and any arrangement between the parties, the law presumes the person who physically gives birth to the child to be the mother. Therefore, following the birth of the child, the law cannot compel the surrogate mother to forgo her rights to the child and hand it over to the intended parents. Similarly, if the surrogate mother is either married or in a de facto relationship when the child is conceived and has consented to the procedure, they too will legally be considered a parent of the children. In the event that the surrogate mother refuses to hand the child to the intended parents following birth, the intended parents would need to apply for a parenting order from the Family Court that the child live with them.

Victorian Law for Surrogacy

Once the child is born, state laws provide mechanisms for the status of parent to be conferred upon the couple that will raise the child. In Victoria, this requires an application to be made to the County Court for a substitute parentage order if the child was conceived and born in Victoria. This order must be made within the first six months of the child’s life to ensure that the intended parents are recognised on the child’s birth certificate. Once a substitute parentage order is obtained, the surrogate mother and/or her partner will no longer be recognised as parents of the child.

Under current Victorian law, the intended parents of a child who is conceived interstate or overseas cannot obtain a substitute parentage order even if the child was born in Victoria. In these circumstances, the intended parents cannot be listed on the child’s birth certificate and the surrogate mother will remain the legal parent of the child.

Pursuant to a surrogacy arrangement, the surrogate mother’s medical costs and out-of-pocket pregnancy related expenses may be funded by the intended parents. It is, however, illegal for the surrogate mother to receive any financial compensation for her participation in the arrangement by way of payment of a fee or reward.

International Surrogacy –what does it really mean?

This is not the case however for people who are engaging in international surrogacy arrangements, such as the parent’s of baby Gammy. It is not illegal for residents in most states of Australia, including Victoria, to engage in such arrangements and financially compensate a surrogate mother for carrying their child. However, the intended parents under such arrangements are not able to obtain substitute parentage orders or be listed on the child’s birth certificate. The only legal avenue available to parents under these arrangements is to apply to the Family Court for parenting. Such orders can confer parental responsibility on the intended parents and enable them to function as the child’s parents in everyday life, however will not legally recognise them as the parents of the child. The intended parents may also face difficulties bringing the child to Australia to live and will need to apply for citizenship by descent for the child or a permanent VISA.

Surrogacy Arrangements via IVF

Surrogacy arrangements in Victoria that are carried out through IVF clinics must be approved by the Patient Review Panel prior to the clinic facilitating conception. In order to have the arrangement approved by the panel, all parties to the arrangement must have received legal advice. It is also advisable that parties have formal surrogacy agreements drawn up by their legal advisors prior to conception. The preparation of the agreement enables the surrogate mother and intended parents to come to an agreement in relation to issues that may prove to be points of contention throughout the process. As parties to a surrogacy arrangement must enter into the process with full knowledge of the legal consequences of the arrangement should a dispute arise, a formal agreement can also be used to evidence this should informed consent be brought into question throughout the process.

Article by Briony Robertson

 For more information about surrogacy and how the laws might affect you, please contact our office  – 9620 0088

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