Surrogacy Laws in Australia

Due to a list of different surrogacy laws in Australia that regularly conflict with one another across several state jurisdictions, surrogate parenting in Australia comes as a bit trickier. The use of a surrogate parent may, in certain circumstances, be a non-financial personal contract between the parties involved, and in other circumstances, it may be a business agreement. So, we can say that this process is different from adoption both legally and practically.

Overviewing various surrogacy laws in Australia

For instance, Western Australian surrogacy law quotes 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.

The parties should seek legal advice from an experienced attorney before entering into a surrogacy agreement and before requesting a Parentage Order (which should not be confused with a “Parenting Order”).

A lawyer, on the other hand, cannot give advice simultaneously to the surrogate mother in Australia and the couple seeking surrogacy arrangements in order to avoid a conflict of interest. To ascertain whether the parties are capable and suitable to be parents to a child delivered to a surrogate, a medical evaluation of the parties is required. It should be noted that the state of Western Australia expressly bans age as a justification for prohibiting someone from helping to care for a surrogate kid.

The agreement established between the parties must also receive approval from the Reproductive Technology Council. This agreement will be declared void by the judicial system if it is not in place before the birth mother becomes pregnant. It’s likely that the parties will want additional conditions to be met if a surrogacy clinic in Australia is engaged.

What are Parentage Orders in Australia and how do they function?

The intended parents have the option of petitioning the court for a Parentage Order if the parties have adhered to the above-described steps to enter into a legally binding Surrogacy Arrangement. The surrogacy laws in Australia differ according to the jurisdiction, but in Western Australia, for instance, an application must be made to the Family Court no later than 28 days after the kid is born and no later than 6 months after the child is born.

The Court will evaluate what is currently in the best interests of the child when making a decision on a Parentage Order. The evidence is consistent with the assumption that the arranged parents are the child’s preferred parents. The Parentage Order states that for the rest of the child’s life, the biological parents will be regarded as the child’s legal parents.

Understanding the difference between Commercial and Altruistic surrogacy in Australia

Surrogates are divided into categories where ones who do and those who do not receive a “profit” for carrying a child on behalf of another. In basic terms, this is recognized under surrogacy laws in Australia.

Where the line between the two categories should be drawn in legal terms, i.e. when “altruism becomes commercialism “is a difficult question to answer! This is regularly taken into account when discussing the surrogate mother’s motivation and financial gain.

Altruistic surrogacy is described as an arrangement in which a woman agrees to become pregnant and give birth on behalf of another person without expecting payment beyond minimal home-help expenses or the provision of medical care for the entire pregnancy and delivery.

In Australia, where it is somewhat common, this kind of surrogacy is not a crime. Nevertheless, in the Australian states of South Australia and Western Australia, access to altruistic surrogacy is prohibited for single people and homosexual couples.

All Australian jurisdictions, with the exception of the Northern Territory, forbid domestic commercial surrogacy (where no legislation exists). In other words, it is illegal to pay someone in any way for their ability to procreate. There are no paid surrogacy providers available in Australia that women who want to bear the child for financial gain can contact.

A professional surrogacy agency’s services are typically used to arrange an international commercial surrogacy. Acts involving international commercial surrogacy, such as looking for a gestational carrier abroad, are regarded as crimes in Queensland, New South Wales, and the Australian Capital Territory.

In 2014, commercial surrogacy was forbidden in Thailand as a result of a well reported occurrence involving a kid born to a gestational carrier who was severely malformed. In the past, Thailand was a significant source of surrogate mothers for Australian families. However, despite the fact that the problem has not been addressed, commercial surrogacy is still on the rise in the majority of other nations.

Other 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 mother in Australia 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 fulfill 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. When it comes to bringing the kid to Australia, compensated surrogacy may provide problems for the new parents because citizenship is not conferred by the right of paternity but rather by application on the part of the parents to the federal government. A child of an Australian citizen, whether biologically related or legally adopted, may receive “Australian Citizenship by Descent,” a sort of citizenship.

How do parental orders function in Australia?

If the birth mother refuses to hand up the child to the intended parents after the birth, the intended parents’ only option is to request a Parenting Order from the Family Court of Western Australia. Particularly in situations when the birth mother has developed a deep emotional relationship with the kid and is both financially and emotionally capable of parenting the child on her own, this is incredibly hard and rife with pitfalls.

In relation to the child living with them, parental responsibility for long-term parenting decisions, and any other similar matters relevant to the child’s welfare, it is likely that the family that organized the surrogacy may be able to get orders.

In most Australian states and territories, surrogacy in Australia is deemed legal. Hence, it is necessary to carry out surrogacy with the child’s best interests in mind.

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 mother in Australia.

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 mother in Australia 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 endeavor, 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.

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 mother in Australia 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.

Surrogacy Regulations in the ACT

The following prerequisites must be satisfied in order to enter into a non-commercial surrogacy arrangement in the Australian Capital Territory:

The surrogate must be at least 18 years old, the intended parents must be Australian Capital Territory residents, and the intended parents must be at least 25 years old.
A couple who are expecting a child is the intended parents.
According to ACT agreements, any money made to a surrogate mother in Australia must only be used to cover the costs incurred throughout the pregnancy. It is against the law for intended parents to post advertisements looking for a surrogate, as well as for people looking to be surrogates.

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 mother in Australia 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 in Australia
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.

Surrogacy laws in Northern Territory

Due to a lack of legislation, surrogacy is illegal in the Northern Territory.

Dispute-Provoking Elements in Surrogacy laws in Australia

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 mother in Australia 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.

How can we help?

At Surrogacy Consultancy, we got the best team of legal experts that 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!