What is a surrogate?
A surrogate is woman who carries a baby for someone who is unable to carry their own child. After birth she gives the baby back to the intended parents. There are two types of surrogacy options: traditional surrogacy and gestational surrogacy. It is recommended to get individual legal advice before entering into any surrogacy agreement.
Traditional surrogacy is when a woman uses her own egg/s which are fertilised by either donor sperm or recipient’s sperm. Traditional surrogates are genetically related to the child because their own egg/s are used in the process. Traditional surrogacy is not legal in every State. Check State guidelines to be sure.
A gestational surrogate (also known as a gestational carrier) is not genetically related to the child the surrogate carries. IVF is used to create embryos by using sperm and eggs from either the intended parents or sperm/egg donors. The embryos are implanted into the gestational surrogate’s uterus, where ideally a live birth or two will result.
Commercial vs. Altruistic Surrogacy
Intended parents and surrogates need to decide which type of surrogacy arrangement best suits them. There are two types of arrangements, commercial and altruistic.
Commercial surrogacy is where a surrogate is paid for carrying the child. Commercial surrogacy is not permitted in Australia or New Zealand. Many couples are entering into overseas commercial surrogacy agreements to create a family. Please note that all States in Australia and NZ have different laws regarding commercial surrogacy. It is strongly advised to get independent legal advice before signing to an International agency.
Altruistic surrogacy is when a surrogate is given no financial gain for carrying a child. Only realistic out of pocket expenses are covered by the intended parents. E.g. medical costs, travel, time off work, etc. Altruistic surrogacy can use either a traditional or gestational surrogate. Altruistic surrogacy is permitted in both Australia and New Zealand.
Could I be a surrogate?
Do you enjoy being pregnant? Do you have problem free pregnancies? Are you between the ages of 25-55 and have completed your own family? Would you like to give the most amazing gift to someone less fortunate? If you answered yes to any of these questions, then you are a potential surrogate!
Can I advertise for or to be a surrogate?
Australian surrogacy laws are complex. Unfortunately, not all States and Territories have the same laws when it comes to advertising for a surrogate. It is illegal to advertise for a surrogate or to offer to be a surrogate in all Australian states besides NSW, SA, WA and NT. In the parts of Australia where it is legal to advertise, the advertisement must not be a paid advertisement. Please keep in mind that altruistic surrogacy is legal in all States and Territories (commercial surrogacy is not).
We at Surrogacy Australia ask that all potential surrogates and recipients who advertise on our website be residents of either NSW, SA, WA or NT. We do not want you (or us) to be involved in the breaking any laws. If you live in the other parts of Australia where advertising is illegal, feel free to join our forum group for support and advice from others in your situation.
Am I eligible to use a surrogate in Australia?
Check out our page on Laws and Legislation to check if you are eligible
We don’t live in NSW, SA, WA or NT but can we advertise for a surrogate who lives there?
Unfortunately not, you will be breaking the law by doing so. Both parties have to be residence of either NSW, SA, WA or NT to advertise for or to be a surrogate. Please note that you are not legally able to pay to advertise for a surrogate in NSW, WA, SA or NT.
What is the law on Surrogacy Agreements?
Under Australian and New Zealand law, surrogacy agreements are not legally binding. That is because the birth mother is considered the mother of the child, regardless of genetics. Parenting orders or adoptions will need to be organised depending upon your local laws to transfer parentage to the intended parents. There is a possibility that the surrogate may decide to change her mind and want to keep the baby. For this reason, it is strongly advised to have a lawyer draw up a contract that clearly lists your intentions before starting a surrogacy process. If you do need to take the matter to court, you will at least have a written, signed and witnessed agreement to be used as evidence. Please note that it is not common for a surrogate to change her mind. In the majority of cases, the months of counselling before and during the pregnancy allows her to successfully hand the baby over to the intended parents after birth.
We think we have found our amazing surrogate, now what?
If planning a gestational surrogacy, your surrogate will have to have IVF to conceive. The majority of IVF companies will have their own lists of procedures when it comes to surrogacy. Please note that some IVF clinics will not accept surrogacy cases, even though it is legal. It is best to contact your preferred IVF clinic and say that you want to discuss your options, and then when you are with your doctor you can bring up surrogacy.