The Surrogacy Act regulates surrogacy arrangements in New South Wales. Surrogacy laws in Australia are complicated as there is no national guideline. Each state and territory has its legislation. Find out more about surrogacy in NSW. What are the different types of surrogacy, what laws apply and what is the process to follow for intended parents? Let’s take a closer look.
What is Surrogacy?When someone acts on another person’s behalf to achieve a result, they are called a surrogate. Surrogate parenting is when one person who is the surrogate carries a pregnancy on behalf of another person if they cannot bear the child themselves. This may be because of infertility or risks associated with pregnancy due to medical history. Surrogacy arrangements are not enforceable, and a surrogate can change her mind. It can get complicated if the birth mother refuses to relinquish the child after birth. Surrogate mothers must receive counselling about the social and psychological implications before entering a surrogacy arrangement.
Gestational SurrogacyGestational surrogacy is when the child is not biologically related to the birth mother, they did not provide the egg used for the conception of the child but carried the foetus throughout the pregnancy. A fertilised egg will be inseminated into a healthy surrogate mother when a couple decides to have another individual carry the baby. The surrogate or birth mother is also known as the gestational carrier.
Commercial SurrogacyCommercial surrogacy is when a person pays a surrogate mother for carrying the child. It is payment for surrogacy services and reimbursement for medical and associated costs. Commercial surrogacy arrangements are illegal in some countries, and some have banned foreign surrogacy as it leads to bonded labour and exploitation of women. In Australia, international commercial surrogacy is a criminal offence, except in Northern Territory, where no surrogacy legislation exists.
Altruistic SurrogacyIt is called altruistic surrogacy when a mother volunteers to be a surrogate without receiving any payment. No financial remuneration is made for the surrogacy arrangement. However, in some instances, the intended parents may cover medical bills and associated pregnancy costs. This may also include loss of earnings, health insurance, travel, or accommodation costs. Altruistic surrogacy is often referred to as non commercial surrogacy, which is not illegal in Australia.
International SurrogacyInternational surrogacy is a growing industry, and many Australians travel overseas to engage a surrogate mother, often in developing countries. You must seek independent legal advice before committing to an international surrogacy agreement. Global regulations may change without warning, and some arrangements may not fulfil Australian legal parentage requirements. Ensure that you undertake comprehensive research about Australian and foreign law before travel. Understand local law and what conditions apply, or you may risk your or your child not being permitted to leave the country. International surrogacy arrangements are illegal in NSW, ACT and QLD. When returning to Australia, parents entering such agreements may face severe legal consequences.
CitizenshipCitizenship of children born overseas through surrogacy is complex as each country has rules that govern who is recognised as the child’s legal parents. The surrogate child may be a citizen by descent, depending on the citizenship of the surrogate mother. For example, if the birth mother is an Australian citizen, the child will automatically become an Australian citizen. Some countries do not recognise citizenship by birth, meaning the surrogate child may not receive citizenship of the country where they were born. They may be eligible for Australian citizenship if at least one of their biological parents is an Australian citizen. Applying for Australian citizenship through the Australian embassy or consulate overseas is also possible. You must research and understand the citizenship laws in the destination where your surrogate child is to be born, Australia and the birth mother’s home country.
PassportYou will also need to obtain a passport for the child or a visa to enter Australia. For passport applications within Australia and overseas, you must obtain written consent from the surrogate mother. Applications can be made at the Australian embassy or consulate where the child was born.
VisaYou should also find out what visa is the most appropriate. Some countries require you to obtain a medical tourist visa. In some instances, you may also require an exit visa to leave the country. Children travelling on an international passport may also need a visa to reenter Australia. You must be familiar with the requirements for your travel, as local authorities can put your child on a no-fly list if there are any legal issues surrounding your surrogacy.
Who Can Be A Surrogate?Surrogacy laws vary from state to state, and different rules apply depending on where you live. In New South Wales, for example, The Surrogacy Act 2010 defines the regulations regarding surrogacy arrangements in the state. The act states that the birth mother must be over 25 and have obtained counselling and legal advice before engaging in a surrogacy arrangement.
Surrogacy LawsThe guiding principle for a surrogacy arrangement is to ensure that the outcome maintains the child’s best interest. Surrogacy arrangements in Australia are highly complicated due to different state and territory laws, which can contradict each other. For example, in some states of Australia, it is illegal to advertise for a surrogate or desire to act as one, whereas in other states, it is permitted as long as there is no advertising fee paid. The age restriction between states varies; in some cases, the surrogate must have previously given birth to a child. Individuals looking into entering a surrogacy arrangement must obtain independent legal advice to ensure they have the most accurate and updated information. All parties involved, including the birth mother’s partner, must receive counselling before agreeing and understand their decision’s social and psychological implications.
New South WalesA surrogacy arrangement may be permitted if it complies with the Surrogacy Act 2010. The intended parent and birth mother must be at least 25 years old and residents of NSW. A commercial surrogacy arrangement is not permitted, and payment can only be made to cover the birth mother’s surrogacy costs. The surrogacy must be gestational only, which means the surrogate must not be related to the child. It is illegal to travel to another jurisdiction, overseas, for example, for commercial surrogacy.
Western AustraliaIn WA, a valid surrogacy arrangement agreement must be entered, and conditions must be met. The conditions include; All parties are to undergo medical evaluations and counselling to establish their suitability. The surrogate mother must have previously given birth and be over 25 years old. The Reproductive Technology Council must approve the surrogacy agreement before the surrogate gets pregnant. All parties must sign the agreement, which must be in writing.
Northern TerritoryThere is no surrogacy legislation in Northern Territory.
South AustraliaThe Family Relationship Act governs surrogacy law in South Australia. It stipulates that the intended parents and the surrogate must be at least 18 years old, be residents of SA and have received counselling and legal advice. Commercial surrogacy is not permitted.
QueenslandA surrogacy agreement can be permitted if it complies with the Surrogacy Act and all parties are at least 25 years old. The intended parent must be a resident of QLD and have received counselling and legal advice. Commercial surrogacy is not permitted.
VictoriaSurrogacy agreements in VIC are governed by the Assisted Reproduction Treatment Act and must meet the requirements set by the patient review panel. The intended parent must prove that they are unlikely to become pregnant or that pregnancy may risk the mother or child’s life. All parties must be residents of VIC and have received counselling. The arranged parents must be at least 18 and the birth mother at least 25 years old. The surrogate must have also previously given birth to her own child. A commercial surrogacy arrangement is not permitted.
TasmaniaThe Surrogacy Act manages surrogacy arrangements in TAS. The surrogate must be 25 years old and have previously given birth. There must be a medical or social need for the surrogacy agreement. All affected parties must be residents of TAS, have signed the written contract, and have received counselling and legal advice. The intended parent must be at least 21 years old, and the surrogacy arrangement must not be commercial.
Australian Capital TerritoryA surrogacy arrangement in the ACT must be non-commercial, and the intended parents must be a couple and at least 25 years old. The birth mother must be 18, and all parties are ACT residents.
What is A Parentage Order?Parentage orders transfer the parentage of a child born from the surrogate to the intended parents. An update to the Surrogacy Act NSW allows intended parents of a child born through surrogacy to apply to the Supreme Court to obtain full parenting rights. In the past, the only alternative to gain full parental rights was to use adoption, which was an expensive and lengthy process.
Parentage Order Steps
- An application must be made between one and six months after the child’s birth
- The child must be living with the applicant
- All parties must consent to the parentage order and have undergone counselling
- The birth mother and birth mother’s partner must attend relinquishment counselling
- Both couples must have obtained legal advice from a lawyer who specialises in family law
- The surrogate mother must register the birth (A parentage order will not be approved if the baby’s delivery has not been registered)
- The intended parents are permitted to name the child
- People entering into the agreement must satisfy a list of criteria