Surrogacy arrangements have only become subject to legislation in more recent times. There is no national scheme of surrogacy law – each state is different.

There are two forms of surrogacy:

  • Traditional surrogacy: The surrogate is the genetic mother of the child. • Traditional surrogacy: The surrogate is the genetic mother of the child.
  • Gestational surrogacy: The surrogate has no genetic relationship to the child.

It is then important to distinguish between:

  • Altruistic surrogacy; and
  • Commercial surrogacy.

Commercial surrogacy is not permitted in anywhere in Australia. This means that you cannot pay your surrogate any fee, reward or other material benefit or advantage above any reasonable costs associated with the surrogacy. Reasonable costs may include costs associated with medical treatment, travel or accommodation, or costs associated with becoming pregnant. Engaging a commercial surrogacy overseas is also a criminal offence in NSW.

Altruistic surrogacy is permitted. The method of obtaining altruistic surrogacy is for intended parents to enter into a surrogacy arrangement with a surrogate. This is a contract type document which provides guidance to each of the intended parents, the surrogate, and the surrogate’s spouse (if relevant) as to expectations around the pregnancy and birth. Then, after the child is born, the intended parents apply to the Court for a parentage order by consent, which transfers custody and guardianship to them, and which alters the child’s birth certificate to show them as parents.

It is imperative to ensure that the surrogacy arrangement complies with the Surrogacy Act NSW 2010, in order to ensure parentage can be transferred as intended. There are also serious penalties for breaching the Surrogacy Act 2010, so you should contact us and obtain legal advice before commencing any process associated with surrogacy.