Australia's regulations governing surrogacy arrangements are administered at a State level. There is, however, a common premise between all of them: only altruistic surrogacy arrangements are permitted.
In other words, compensated or commercial surrogacy is illegal in all states of Australia. Moreover, overseas commercial surrogacy is forbidden for residents in New South Wales (NSW), Queensland (QLD), and Australian Capital Territory (ACT).
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Altruistic surrogacy
Any form of paid, gainful or commercial surrogacy is considered illegal under Australian law. While some argue that commercial surrogacy should be legal in this country, this premise is commonplace in all states for the time being.
As a matter of fact, in states such as NSW, QLD, and ACT, getting involved in a commercial surrogacy arrangement is considered a criminal offence. In NWS, for instance, in accordance with the Surrogacy Act 2010, those who get involved in an international surrogacy arrangement are subject to a maximum penalty of 1000 penalty units or imprisonment for two years (or both).
Compensating the gestational carrier (GC) for the expenses incurred during the pregnancy and the surrogacy process per se is the only kind of payment allowed between the intended parents and the GC.
Surrogacy agreement
Under Australian legal framework, surrogacy agreements are not enforceable. Subsequently, the birth mother is considered the legal mother of the child, irrespective of the genetic link between them.
So, in short, after the birth of the child, the intended parents should apply to become the child's rightful parents. For this to be possible, a transfer of rights from the GC to the intended parents is necessary beforehand. The surrogate may decide to keep the baby after birth, given that it is legally possible.
Intended parents must apply to become the legal parents when the baby is between 28 days of age and 6 weeks (varies on a State level), and before he or she turns 6 months old.
Applications made after this deadline leaves intended parents no choice but to apply to either the Family Court or Federal Magistrates Court for parenting orders that the child lives with them.
As one shall see, and considering the uncertainty associated with surrogacy agreements in Australia, hiring the services of an experienced attorney who specializes in surrogacy is crucial. In case you had to apply to either the Family Court or Federal Magistrates Court, a properly defined contract would be useful to demonstrate the initial intentions of each party.
The good news is that it is very uncommon for Australian surrogates to decide to keep the baby after birth.
How to find a gestational carrier
The fact that surrogacy agreements must be 100% altruistic makes childless couple no alternative but to look for a woman who is willing to help them selflessly.
For this reason, it is common for Australian intended parents to work with a sister, cousin or other family member, or even a close friend, who wants to help them start a family. This type of surrogacy between family members is known as intrafamilial surrogacy, according to the ASRM (American Society for Reproductive Medicine).
The minimum age of the surrogate varies by state. While 18-year-old candidates are accepted in ACT and SA, the remaining states (NSW, QLD, TAS, VIC, and WA) accept surrogates from age 25 onwards.
Publishing ads on the Internet or other communication media to find a surrogate or to promote yourself as a surrogate is illegal.
States like New South Wales (NSW), South Australia (SA), Western Australia (WA), and Northern Australia (NA) have made an exception to this rule. There, surrogacy ads are allowed as long as they are done for free, without the involvement of paid intermediaries.
As a result, intended parents often find a surrogate via word-of-mouth or social media. Joining support groups or forums on the Internet is useful to find surrogates as well.
Regulations by family type
Altruistic surrogacy is permitted in all Australian states to heterosexual couples who cannot bear a pregnancy due to medical reasons.
On the contrary, same-sex couples who opt for this method to have a child should reside in Queensland, Tasmania or New South Wales—only these three states give gay couples the right to have a baby via surrogacy.
As for single women, surrogacy is permitted for them in NSW, QLD, TAS, and WA.
Altruism, legal uncertainty, and restrictive regulations are the main reasons why Australian citizens see themselves forced to pursue surrogacy overseas, in countries where the laws are more permissive. In turn, this is also the reason why Australia is an uncommon destination country for fertility tourists.
Prices
The cost of gestational surrogacy in Australia ranges between $15,000 and over $100,000. Factors such as the use of additional fertility treatments, the State, and the number of attempts required to achieve success influence the overall cost.
Nevertheless, the major variable is the cost of fertility treatment, that is, IVF surrogacy. If you with to use additional techniques such as PGD/PGS or PGD with gender selection, the cost will increase.
But one should not forget that there are many other factors involved in surrogacy arrangements. Legal advice, counseling and psychological assessment, pregnancy and delivery, applying for a parentage order, and other costs (travel costs, life insurance, loss of income for the surrogate, non-medical treatments, and prenatal supplements) are some examples.
Overseas surrogacy laws
First and foremost, all Australians considering international surrogacy should seek independent legal advice before beginning the process. Also, they should also contact the Australian immigration office in the country where they are planning to enter into a surrogacy agreement.
Secondly, it is important to keep in mind that commercial surrogacy arrangements, in spite of being carried out outside Australia, may not fulfill the requirements established under Australian law. As a result, the transfer of legal parentage to the intended parents may not be available.
States like NSW, ACT, and QLD have legislation making it an offence for their residents to enter into commercial surrogacy arrangements abroad, in accordance with Surrogacy Act 2010, Parentage Act 2004, and Surrogacy Act 2010, respectively.
To bring a child born overseas to Australia to live, intended parents must apply for either Australian citizenship by descent or a permanent visa. If the child becomes an Australian citizen by descent, the legal parents also need to apply for an Australian passport for the child.
A child born outside Australia as a result of a surrogate pregnancy is eligible for Australian citizenship by descent if, at the time of their birth, they have a biological parent who is an Australian citizen. Biological parentage is determined by DNA testing.
In case the child is not eligible for Australian citizenship by descent, the parent will need to apply for a visa for the child. Otherwise, the child won't be allowed to enter and remain permanently in Australia.
If the sponsoring parent were not the biological parent, an Adoption visa would be the relevant visa for the child. The intended parent would formally adopt the child, although it is rare for children born outside Australia to meed the immigration requirements for expatriate adoption.
Surrogacy, like any medical treatment, requires you to trust the professionalism of the clinic and the agency.
FAQs from users
Why is surrogacy illegal in Australia?
This is not true. Surrogacy is legal in Australia, although legislation varies by State. However, it is true that commercial surrogacy is illegal. Only altruistic surrogacy arrangements are allowed, irrespective of the State.
How much does a surrogate cost in Australia?
Actually, determining the total cost of IVF surrogacy in Australia is complicated, as many factors are involved. As explained above, the price may vary from $15,000 to over $100,000 on average.
Is traditional surrogacy legal in Australia?
Although it is true that it is not forbidden under the laws of NSW, QLD, SA, TAS, VIC, and WA, this type of surrogacy is unadvisable in all cases. It increases the risk for the surrogate to decide to keep the baby after giving birth, given that she is genetically linked to him/her.
Why is commercial surrogacy illegal in Australia?
Perhaps it is due to a conflict found between ethics and paid surrogacy. However, with Australians representing 25 percent of all international surrogacy arrangements, many surrogacy experts from the country consider the this type of surrogacy should be regulated and permitted in Australia.
Suggested for you
After reading this comprehensive guide, you may have reached the conclusion that Australia is not the best country for surrogacy, whether you're an Australian or a foreign citizen. To get a much deeper insight on international surrogacy laws, read: Surrogacy Laws by Country – Where Is It Legal?
Or, what's more, if you are decidedly ready to start your surrogacy journey overseas, you might be interested in learning more about the countries that allow this fertility option to foreign intended parents: International Surrogacy – Laws & Options for Surrogacy Abroad.
Finally, we have made several references to IVF surrogacy, the type of In Vitro Fertilization used in surrogacy. Click here to read more: What Is IVF Surrogacy? – Process, Success Rates & Cost.
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