New South Wales

New South Wales Surrogacy Act 2010

Overview of the Act. We recommend that you seek legal advice before proceeding with surrogacy

The guiding principle of this act is that the best interests of the child is paramount

Am I eligible for surrogacy?

An eligible person or couple is someone who is unable to conceive (unexplained infertility) or is able to conceive but is unlikely to carry the baby to term without significant risk to herself or the baby’s health. Eligible people include a single man or woman, a man and woman, 2 men or 2 women.

 Can we do Gestational Surrogacy?

Yes, you can use either your egg, or that of a donor. Medicare does not cover the costs IVF in the case of gestational surrogacy; this means you will be required to pay the full medical fee associated with getting pregnant

Can we do Traditional Surrogacy?

Yes, but only if your surrogate is prepared to do self-insemination.

 What do we need to do to obtain a parentage order?

There are a few requirements you need to meet to be eligible for a parentage order – these must be done prior to entering an agreement…

Counselling

Both the surrogate and IP’s must have independent counselling prior to entering an agreement with a counsellor who

  • is a member of, or eligible for membership of, the Australian and New Zealand Infertility Counsellors Association and is familiar with any guidelines issued by the Australian and New Zealand Infertility Counsellors Association and the National Health and Medical Research Council

or

  • be a qualified psychologist, qualified psychiatrist or qualified social worker, and have specialised knowledge in this area that enables the person to give opinion evidence in the matter of a parentage order

A qualified psychologist is a person registered as a psychologist in a State or Territory or in New Zealand.

A qualified psychiatrist is a medical practitioner who has qualifications in psychiatry recognised by the Royal Australian and New Zealand College of Psychiatrists.

A qualified social worker is a person who is eligible for membership of the Australian Association of Social Workers or the New Zealand Association of Social Worker

Legal Advice

You and your surrogate must have independent legal advice from different legal representatives before entering an arrangement. You can draw up your own arrangement if you have the knowledge and understanding to do so. At a minimum you all must have independent legal advice before entering the arrangement and after the birth of the baby.

Consent

Consent must be given freely by the surrogate before entering the arrangement. This means that there should be no coercion on the part of the IP’s.

 What costs do the IP’s have to cover? 

As an IP you must cover all of your surrogate’s reasonable costs which include…

  • in the case of time off work for the surrogate’s partner to attend appointments etc
  • all of her costs from trying to become pregnant, her pregnancy and recovery (lost earnings, no longer than 2 months around the birth of the baby, as well as any other periods during the pregnancy the surrogate is unable to work on medical grounds) are to be covered by the IP’s
  • all the medical costs of the surrogate and the baby
  • a premium payable for private health cover and disability or life insurance for the surrogate
  • all costs of counselling and legal advice for the surrogate
  • reasonable costs associated with transferring parentage (court dates etc)
  • any reasonable travel or accommodation costs associated with the pregnancy or birth
  • medical costs does not include any costs that are recoverable under Medicare or any health insurance or other scheme, therefore the surrogate has to reimburse you for any refunds given by Medicare or her private health fund

Although the surrogacy agreement is not enforceable, an obligation under the surrogacy agreement to reimburse the birth mother’s expenses is enforceable unless the surrogate does not relinquish the child, or does not consent to a parentage order.

 Application of a parentage order

Must be made after 30 days of birth and before the child turns 6 months. If applied for outside of this period, it is at the court’s discretion if a parentage order is granted.

Your surrogate must be at least 25 years of age when entering into a surrogacy arrangement.

Intended parents must be at least 18 years of age when entering into a surrogacy arrangement; however the court must be satisfied of the sufficient maturity of an intended parent under the age of 25 years.

The IP’s must be resident in New South Wales at the time of the hearing of the application.

The surrogacy arrangement must be in the form of an agreement in writing, signed by the birth mother, the birth mother’s partner (if any) and the IP’s.

All information about the surrogacy arrangement that is registrable information must have been provided to the Director-General of the Department of Health, for entry in the central register kept under that Act.

 Can I advertise for a surrogate in NSW?

YES! You can advertise for an altruistic surrogate in NSW as long as you do not pay for advertising. You can advertise for free on internet forums.

Is commercial surrogacy illegal?

Yes, commercial surrogacy is illegal in NSW.  Commercial surrogacy is defined by payment, reward or material benefit given to the surrogate excluding the surrogate’s expenses.