Queensland Laws

Queensland Surrogacy Act 2010

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

The guiding principles of this act is that the wellbeing and best interests of a child born through a surrogacy arrangement are paramount and must be offered a stable safe home and be offered openness and honesty about the child’s birth mother.

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 you need to have a clinic to support you if you are not prepared to do home inseminations. If you use an IVF clinic for traditional surrogacy Medicare will not cover any of the cost.

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

All parties need to have independent counselling with a counsellor who is prepared to prepare a report and sign an affidavit. Your counsellor must either be –

  • a member of the Australian and New Zealand Infertility Counsellors Association
  • a psychiatrist who is a member of the Royal Australian Psychological Society
  • a social worker who is a member of the Australian Association of Social Workers

AND they must

  • have the experience, skills or knowledge appropriate to prepare the report

The counsellor involved also must not be affiliated with the clinic you are attending to obtain the parentage order, but you may see your clinic’s counsellor prior to becoming pregnant through surrogacy.

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)
  • travel and accommodation expenses if your surrogacy does not live near
  • 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.

The Act states that the surrogate has the rights to manage the pregnancy. This means the surrogate gets to choose where and how she delivers the baby.

 Application of a parentage order

Must be made after 28 days of birth and before the child turns 6 months. If done outside this time you have to apply for special orders and this is at the court’s discretion.

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

You (the IP) must be a resident of QLD to be able to obtain a Queensland Parentage Order

You will need signed affidavits from you and your spouse (if any), the surrogate and her spouse (if any), your lawyer and your surrogates lawyer, the counsellor who provided your report, one from your doctor to qualify you as an eligible woman and one from your surrogate’s doctor to verify a report as an eligible surrogate.

Can I advertise for a surrogate in QLD?

Legally you are not allowed to advertise in any form (internet, radio, newspaper etc) but you can access internet forums and state your story and that you are looking to talk to anyone who has information regarding surrogacy.

Is commercial surrogacy illegal?

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

 

All of the above information is given if you intend to obtain a parentage order. You can still do surrogacy and skip all of these steps – this would be what is called a private surrogacy arrangement and is only able to be done in the case of traditional surrogacy with self-inseminations. In a private surrogacy arrangement you will not be eligible to apply for a parentage order and will have to apply for guardianship of the resulting child.