Is surrogacy legal in Australia
Surrogacy in Australia is regulated in each state, which means
there are no uniform laws that cover surrogacy across the country.
Due to a list of different Australian surrogacy laws regularly conflicting with one another across several state jurisdictions, surrogate parenting in Australia comes a bit trickier.
Is surrogacy legal in Australia: overviewing various laws
For instance, Western Australian surrogacy law states that a legally enforceable “Surrogacy Arrangement” must be signed by both parties before a voluntary surrogacy agreement can be signed with a gestational carrier. These agreements are subject to the following conditions, among others:
- The agreement must be written and signed by each of the parties
- The surrogate birth mother must be at least 25 years old and have previously given birth
- The parties must show that they sought legal consultation from a lawyer at least three months before signing the contract. Surrogacy Consultancy in Australia will help you with this.
States with ‘not so favorable’ surrogacy laws in Australia
There is currently no surrogacy legislation in existence in the Northern Territory. Victoria and South Australia, on the other hand, have changed their laws, and Western Australia is set to follow suit.
Surrogates frequently have ages greater than 25. In Queensland, New South Wales, or South Australia, it is not required that a surrogate have her own child before becoming a surrogate.
Intentional parents in Tasmania are expected to use a local surrogate.
In Victoria and Western Australia, intended parents must employ a surrogate who has already given birth unless there are exceptional circumstances.
There are no national surrogacy laws because each state has its own regulations, which implies. Every state’s surrogacy laws are built on the same essential ideas that are as follows :
- The Intended Parents must have a medical or social need for surrogacy, which means they must be unable to conceive or carry a child on their own or, even if they are, it would be risky for them to do so. You must research the local laws in your area as they vary from state to state in order to ascertain who is qualified for surrogacy in your state.
- The surrogate keeps her bodily independence and autonomy during the entire pregnancy. The surrogate will have the last say in decisions involving her own body, but the partners will have agreements in place on pregnancy and birth arrangements. Surrogates have incredible experiences in giving birth and delivering the child to the intended parents.
- The surrogacy contract must only be for altruistic purposes. All states and territories in Australia forbid commercial surrogacy in Australia. So, payment for bearing a child for another person is not permissible for surrogates or their partners.
- Although becoming a surrogate is a commendable endeavour, the costs associated with the pregnancy and birth of the child must be covered by the intended parents.
- When a baby is born, a surrogate and her partner are listed as the child’s parents on the birth certificate, and the birth is registered in the state where the child was born.
- The Intended Parents may ask the court for a Parentage Order in the state where they live after the baby is born. According to the Order, the intended parents now have legal custody of the kid instead of the child’s birth parents. The original surrogate and her partner are removed from the birth certificate, and a new one is produced with the names of the new parents.
- Before trying to conceive in any state, any woman who wishes to get pregnant must have independent legal advice. This rule applies to both gestational surrogacy and traditional surrogacy contracts.
Legal complications associated with surrogacy laws in Australia
All surrogacy agreements must be “international” or “transnational” in order to be deemed “fully compensated,” exposing all parties to a variety of complicated and frequently conflicting legal issues in both the surrogate’s home country and here in Australia, as well as other nations around the world.
Intended parents must also know that Australia’s Department of Home Affairs is in charge of regulating international surrogacy contracts. This is where families have had greater options to use surrogate services in recent years as a result of declining international travel and medical costs, as well as technical and telecommunications improvements.
The biological parents of a child born through a surrogate must submit an application for a parenting order to the Federal Circuit and Family Court of Australia (FCFCA) in order to obtain custody of the kid. Whether arrangements made outside of Australia will fulfil the requirements for the legal transfer of parentage under the laws of the various states and territories is one part of the legal question surrounding commercial surrogacy.
In rare circumstances, this would mean that Australian citizens are unable to obtain legal recognition as the child’s parents or guardians. A child of an Australian citizen, whether biologically related or legally adopted, may receive “Australian Citizenship by Descent,” a sort of citizenship.
Surrogacy Laws in Western Australian State
Before a voluntary surrogacy arrangement can be entered into in Western Australia, agreements must be completed and signed by both the intended parent and the carrier. To be regarded as valid, an agreement must satisfy the following conditions:
- In order to be eligible, the surrogate must be at least 25 years old and have already given birth to a child.
- The parties must all agree to the terms of the agreement in writing and sign it.
- Legal aid and therapy have been provided to all parties.
In order to ascertain whether the parties are qualified to be the parents of a child born via a surrogate, they must go through a medical examination.
- The Reproductive Technology Council must approve the deal before the surrogate may become pregnant. Before the surrogate can become pregnant, the agreement must be in place.
- A free consultation with a family law expert can be scheduled.
New South Wales’s surrogacy laws
The Surrogacy Act 2010, which was passed in 2010, specifies the surrogacy procedures in New South Wales. The following prerequisites must be satisfied in order to enter into a surrogacy agreement:
- The surrogate is at least 25 years old and also resides in New South Wales, as are the intended parents, who are both at least 25 years old.
- Money may only be paid to cover the costs of the pregnancy and any difficulties during the arrangement, which cannot be for the purpose of commercial advantage.
- The surrogate mother in Australia must not have any genetic ties to the kid and must only be used for the purpose of pregnancy.
- As long as they haven’t paid a fee for the advertisement, parties interested in becoming parents or adopting children are allowed to post advertisements.
Surrogacy laws in the state of Queensland
The Surrogacy Act 2010, which was passed in 2010, governs surrogacy arrangements in Queensland. If a person satisfies the requirements listed below, they may enter a surrogacy arrangement:
- The intended parents, the surrogate, and their partner must all be at least 25 years old.
- the intended parents must reside in Queensland, and all parties must have obtained legal advice and counseling.
- Only gestational surrogacy is permitted and all commercial agreements are forbidden.
South Australia’s surrogacy regulations
The 1975 Family Relationships Act, which established surrogacy regulations in South Australia, was approved. If a person satisfies the requirements listed below, they may enter a surrogacy arrangement:
All parties involved have received legal guidance and counseling, including the intended parents who are not pregnant. The intended parents, the surrogate, and their partner are all at least 18 years old. The intended parents are South Australian residents.
The arrangement must be in writing, signed, and certified by a lawyer; the intended mother must be infertile or appear to be infertile; there must be a serious risk that a genetic defect, disease, or illness will be passed to the child if the intended mother were to become personally pregnant; and the intended parents must be genetically related to the child.
Although there is no regulation banning the inclusion of adverts, the arrangement must not be of a commercial nature.
Surrogacy Laws in State of Tasmania
The Surrogacy Act 2012, which was passed in 2012, specifies surrogacy procedures in Tasmania. If a person satisfies the following requirements, they may enter into a surrogacy agreement:
- The surrogate must be at least 25 years old, have given birth to at least one living child, and be a legal resident of Tasmania at the time of the birth. The intended parents must also be at least 21 years old.
- All parties have received counseling and legal support.
- A written agreement outlining the conditions of the partnership has been signed by both parties.
- A social or physiological necessity makes the surrogacy arrangement imperative.
- Only gestational surrogacy is allowed in this case, and the agreement must be of a non-commercial character.
Laws governing surrogacy in Victoria
The Assisted Reproductive Treatment Act 2008, which was passed in 2008, governs surrogacy legislation in Victoria. If a person satisfies the requirements listed below, they may enter a surrogacy arrangement:
- The intended parents and surrogate must both be Victoria residents, with the intended parents being at least 18 years old and the surrogate being at least 25 years old.
- A child was previously born to a surrogate mother
- The surrogate is not genetically related to the kid, the intended mother is unlikely to become pregnant, the baby or the mother’s life would not be in danger if she carried the pregnancy, and all parties have received counseling.
- There must be no commercial intent in the arrangement, and neither party may advertise.
Laws in the Northern Territory
Due to a lack of legislation, surrogacy is illegal in the Northern Territory.
The only recourse available to arranged parents in the event that a birth mother refuses to give up a child to them is to apply for a Parenting Order with the Federal Circuit Court or the Federal Family Court. This is a challenging situation to handle, especially when the surrogate has developed a deep bond with him or her and is qualified to raise the child.
A parenting order may include information on the kid’s residence, which is responsible for raising the child, and other welfare-related matters. The best interests of the kid will be taken into consideration while issuing the instructions.
At Surrogacy Consultancy, we have the best team of legal experts who will assist and support you during every stage of your surrogacy journey. So, as you chase your parenthood dreams in full spirit, we will take care of the rest. Contact one of our coordinators to schedule a free consultation!