Family Lawyers Mackay
74 Victoria St Mackay QLD 4740
Mon-Fri: 8.30am to 5pm

Family Lawyers Mackay Blog

Home/Family Lawyers Mackay Blog
Discover more
Surrogacy Law In Australia
06 Jan 2021

Information on Surrogacy Law In Australia

By Family Lawyers Mackay, 06 Jan 2021
Surrogacy law

Australians are using surrogacy more often each year to begin families for a variety of causes. Surrogacy proposes a dynamic alternative to parents who adopt in Australia, where adoption has grown into a more regulated and restricting process.  

This process may be the only choice accessible to many Australians, like same-sex couples, singles desiring a child, and women not capable of conceiving for medical reasons.

A gorgeous and giving way to back someone else in realising their family dream is via surrogacy. However, it can also be problematic in terms of emotional, psychological, and medical aspects.

Think you are considering becoming a surrogate or an intended parent via surrogacy in Australia. If so, you must comprehend the rules and Legislation in your state or territory because surrogacy laws in Australia tend to differ from state to state.

Surrogacy in Australia

Most jurisdictions in Australia have pertinent rules for the legal transfer of parentage following surrogacy. Still, the laws about surrogacy arrangements fall under the jurisdiction of state and territory governments. In addition, it is usually illegal to get into commercial surrogacy agreements; however, charitable forms of surrogacy are legal in most jurisdictions.

For any actions defined by the Family Law Act 1975 (Cth), the transfer of legal parentage of children born through surrogacy arrangements remains acknowledged by the mandate of a state or territory court (s. 60HB).

Simply put, surrogacy is an agreement for a woman to become pregnant and give birth to a child on behalf of another individual or couple to transfer the child’s legal right of ownership to the intended recipient(s) following it is born.


By consulting one of our accredited family law mackay specialists.

What is Surrogacy?

Simply put, surrogacy is an agreement for a woman to become pregnant and give birth to a child on behalf of another individual or couple to transfer the child’s legal right of ownership to the intended recipient(s) following it is born.

The types of people who choose to become surrogates don’t fit into a predetermined mould. Women behave as surrogates for a variety of causes at various points in their lives—some desire to help a loved one who has failed to conceive as they see a personal connection. There might be a unique clarification for others. However, surrogates have one thing in common: they all desire to share the greatness of being parents with others.

Different Kinds of Surrogacy Arrangements

Two approaches operate for surrogacy to work:

Traditional surrogacy 

Traditional surrogacy involves using the surrogate’s egg to fertilise an embryo using donor sperm or the intended father’s sperm.

Gestational surrogacy

Gestational surrogacy involves using the egg and sperm of the intended parents or a donor to develop the implanted embryo, with no involvement of the surrogate’s egg in the procedure.

In addition, a surrogate is eligible for payment in one of two ways for carrying the child:

  • Altruistic surrogacy: in this scenario, the intended parents will pay the surrogate’s medical bills and other related expenses after she bears the child with no obtaining payment or additional advantages.
  • Commercial surrogacy: this kind of surrogacy is illegal in Australia and entails payment or other benefits to the surrogate as well as cost reimbursement.

About Surrogacy Process

When a healthy surrogate mother, additionally referred to as a “gestational carrier,” is inseminated with a fertilised embryo, surrogacy typically commences. This is presently an ordinary, low-risk operation. Sexual relations between a surrogate mother and the biological father are rare. Sometimes, though, the sperm and egg come from a couple who, for private reasons, prefer a third person to bear their child. Usually, the egg comes from the birth surrogate or is donated.

Different Australian jurisdictions possess differing laws concerning surrogacy. A person may use a surrogate parent by a non-paying personal contract between the parties, or the surrogacy may be a commercial arrangement.


By consulting one of our accredited family law mackay specialists.

How Does the Surrogacy Process Work?

Surrogacy is a series of stages that can be tricky for both the intended parents and the surrogate mum.

The following is an overview of how surrogacy works. However, the particular procedures may differ according to local laws, the kind of surrogacy, and the arrangements between both parties involved:

  • Selecting a Surrogacy Path: The first step is choosing between gestational surrogacy, in which the surrogate carries a child who is not her genetic relative, and traditional surrogacy, in which the surrogate is also the baby’s biological mother. 
  • Looking for a Surrogate: The following step is for the intended parents to locate an eligible surrogate. You can accomplish this through independent enquiries, personal connections, or surrogacy agencies. It is crucial that the surrogate fulfils likely lifestyle and health necessities and has all the details of the surrogacy process.
  • Legal agreements and screening: Should an appropriate surrogate become apparent, she must undergo a rigorous screening process, often involves psychological and medical testing. Legal agreements that indicate each party’s rights, responsibilities, and financial arrangements must be created and approved.
  • Fertility Treatments: The next step in surrogacy relies on the sort of surrogacy; for traditional surrogacy, artificial insemination occurs, and for gestational surrogacy, in vitro fertilisation.
  • Pregnancy and Delivery: The surrogate brings the child to term. The plan provides a foundation for coordinating prenatal care, monitoring, and delivery.
  • Pregnancy and Delivery: The surrogate births and brings the child to term. The prearranged plan coordinates prenatal care, monitoring, and delivery.
  • Following Delivery: Following the child’s birth, legal actions might be essential to guarantee that the intended parents receive recognition as the child’s legal parents. Following delivery, there may be follow-ups to ensure that the surrogate and the new family are managing well. The child then goes to the intended parents.

Surrogacy Laws in Australia

It can be challenging to figure out the dos and don’ts for both soon-to-be parents and surrogates, as the laws governing surrogacy vary significantly from state to state (the Northern Territory has no regulations in place at all).

Luckily, some general rules can help those considering surrogacy learn what is and is not legal in their region.

Australia’s surrogacy laws vary based on the estate and territory. Here’s a quick overview:

Territory/StateApplicable LegislationMinimum Age ConditionDe Facto CouplesResidents Must be PermanentCan Advertise?Surrogates Must Have at Least One ChildParentage Orders
New South WalesSurrogacy Act 201025 (for surrogates)YesNoJust UnpaidNoAvailable
QueenslandSurrogacy Act 201025 (for surrogates)YesYesNoNoAvailable
VictoriaAssisted Reproductive Treatment Act 2008; Status of Children Act 197425 (for surrogates)YesNoNoYesAvailable
South AustraliaFamily Relationships Act 197518 (for surrogates), 25 (for intended parents)YesYesYesNoAvailable
Western AustraliaSurrogacy Act 200825 (for surrogates)NoNoYesNoAvailable
TasmaniaSurrogacy Act 201225 (for surrogates)YesYesNoYesAvailable
Northern TerritorySurrogacy Act 202225 (for surrogates)YesYesYesNoN/A
Australian Capital TerritoryParentage Act 200425 (for surrogates)YesNoNoYesAvailable

The Requirements for Approving Surrogacy

State and territory laws in Australia regulate surrogacy, and there are variations in the criteria for approval. However, a few similarities are present in jurisdictions:

  • Altruistic Surrogacy: In Australia, only altruistic surrogacy is legal. As a result, the surrogate mother can only get reimbursement for the costs she incurred directly linked with the surrogacy. Therefore, it is illegal to use commercial surrogacy, whereby the surrogate mother gets payment as well for those costs.
  • Age Qualifications: Typically, the intended parents and the surrogate must be at least 25 years old, though each jurisdiction may have distinct age demands. The intended parents and the surrogate must typically be at least 25 years old, though each jurisdiction may have distinct age demands.
  • Medical Required: In some states, intended parents who are not able to conceive or carry a pregnancy to term must prove that they have a medical requirement for a surrogate.
  • Counselling and Legal Guidance: Before entering into a surrogacy agreement, both the intended parents and the surrogate mother generally need to seek independent counselling and legal advice. This ensures everyone knows the necessities, risks, and implications of surrogacy.
  • Surrogacy Agreement: Although legally not enforceable, surrogacy agreements are often necessary to continue with the permitting process. The agreements indicate each party’s duties, roles, rights, and any mutually agreed-upon costs that must be paid back.
  • Parentage Orders: To legitimately transfer parental rights from the surrogate (and her partner, if applicable) to themselves, the intended parents must apply to the court for a parentage order after the child is born.

Evidence that the surrogacy agreement was made before the child’s conception, that all parties consented to the order, and that the order is in the child’s best interests is typically necessary by the courts.


By consulting one of our accredited family law mackay specialists.

The Process For International Surrogacy Agreements In Australia

An arrangement known as “international surrogacy” occurs when the intended parents and the surrogate mother live in separate nations. For the transfer of embryos and the birth of the baby, the intended parents typically plan two trips to the country of the surrogate mother.

Because surrogacy laws vary amongst Australian states and countries, the legal ramifications of international surrogacy for citizens of those countries can be complex and even hazardous.

Legal Status and Limitations:

All Australian states and territories prohibit commercial surrogacy, which means paying a fee to the surrogate instead of medical and other reasonable costs.

In addition, participating in commercial surrogacy arrangements overseas is illegal for citizens of certain jurisdictions, such as Queensland, the Australian Capital Territory, and New South Wales. Breaking these laws could result in penalties or imprisonment.

Parentage Orders and Nationality:

When Australian intended parents go back home with the child, they face more legal difficulties even if an international surrogacy arrangement is legitimate.

Regardless of any foreign court orders or birth certificates recognising the intended parents, the surrogate mother usually gets recognised as the child’s legal mother in Australia.

To officially take over as the surrogate’s parents, the intended parents must file for a parentage order from an Australian court. In the case of international surrogacy, however, the demands for getting such orders may not always be happy swiftly.

When it comes to citizenship, children born overseas via surrogacy arrangements are eligible to obtain Australian citizenship, and at least one of the intended parents holds Australian citizenship.

It may be essential to offer proof that the kid’s surrogate mother (or egg donor, if applicable) gave up all parental rights. Still, the procedure can be challenging and time-consuming.

Practical as well as Ethical Considerations:

Furthermore, there are both practical and moral issues associated with international surrogacy.

Among these are worries about the possible abuse of surrogate mothers in developing nations, hazards related to the surrogate’s home country’s varying legal and healthcare security, and the potential for the child to become stateless or be placed in legal limbo if the surrogacy agreement or citizenship application is declined.

Would you like to Learn About Australia’s surrogacy laws?

Our family law lawyers can help you navigate these complex legal situations and ensure you understand your rights and duties.

We provide clear-cut, supportive advice based on your specific circumstances. Contact us right away to begin your surrogacy journey with confidence and ease.

Put your family’s future in the hands of experts at Family Lawyers Mackay.


By consulting one of our accredited family law mackay specialists.


Australia bans surrogacy, right?

Altruistic surrogacy is legal in Australia, although state laws differ. You can learn more about the legal system in Australia here.

What distinguishes gestational surrogacy from traditional surrogacy?

Traditionally, the surrogate becomes the biological mother via the use of her egg in the surrogacy procedure. By implanting an embryo generated from the intended parents’ or donors’ sperm and egg, gestational surrogates can cut off their genetic ties to the kid completely. 

Are same-sex couples capable of employing Australian surrogates?

In most Australian states, yes, same-sex couples are eligible for surrogacy; however, specific legal requirements and qualifications may vary.

What costs must the intended parents pay for the surrogate?

The surrogate’s parents of choice must make payments for adequate costs such as maternity clothes, travel expenses, legal fees, medical bills, and the potential wage loss.

Get in touch today!

We take pride in customer service and look forward to handling your matter.