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A surrogacy lawyer will help potential surrogates and parents navigate the legal minefield of surrogacy law.

Surrogacy and Family Law 

While many people are familiar with IVF as an option for assisted reproduction, surrogacy is lesser known as Australia’s option. Essentially, surrogacy is an arrangement between the intended parent/s and another woman who agrees to bear the child for the mother. Once born, the intended parents take over as if they had given birth themselves. A legal agreement often supports this, and more increasingly, the Australian courts are ruling on surrogacy decisions.  

surrogacy laws australia

What states is surrogacy legal in Australia?

Commercial surrogacy is illegal in almost all Australian states. Currently, the only state that has no surrogacy laws in Northern Territory. In all other states, only ‘altruistic’ surrogacy is legal. Children born under an ‘altruistic’ surrogacy arrangement are easily transferred to the intended parents upon birth. 

What is ‘altruistic surrogacy?

Altruistic surrogacy is an agreement whereby the woman carrying the baby receives no financial benefit for doing so. 

Who is eligible to apply for a parenting order due to surrogacy?

Across most states, for an application for a parentage order, a parent has to either:  

  1. be a man or an ‘eligible’ woman; or
  2. If there are two intended parents, that couple has to either be:
    1. A male same-sex couple; or  
    2. A female same-sex couple where both women are ‘eligible’; or 
    3. A heterosexual couple where the woman is ‘eligible’.  
What does ‘eligible’ woman mean?

Now what they mean by ‘eligible’ is a woman who cannot have the child themselves for one of the following reasons.  

  1. They are unable to conceive; or  
  2. Can conceive but —
    1. is likely to be unable, on medical grounds, either to carry a pregnancy or to give birth; or
    2. either—
      1. is unlikely to survive a pregnancy or birth; or
      2. is likely to have her health significantly affected by a pregnancy or birth; or
    3. is likely to conceive—
      1. a child affected by a genetic condition or disorder, the cause of which is attributable to the woman; or 

Can Australians enter into surrogacy arrangements overseas?

Yes, many Australians are entering into surrogacy arrangements overseas. Commercial surrogacy is legal in several overseas jurisdictions. However, it is not a solution for parents wishing to enter into commercial surrogacy arrangements. In 2017, the Full Court of the Family Court of Australia decided on an Australian family’s fate that entered into an overseas commercial surrogacy arrangement. The Court gave the family parental responsibility for the child. However, it would not make a declaration of parentage, even though the Husband was the biological Father. As to who are the legal parents of a commercial surrogacy arrangement – the Court, in this case, decided against answering that, leaving the child legally ‘parentless’.  

What happens if the birth mother decides they want to keep the baby? 

Most state legislation clarifies that surrogacy agreements are not enforceable. A judge would need to determine the child’s best interests, as with any family law matter, before making a ruling on the case. It is best to seek the opinion of an experienced surrogacy lawyer

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