Are You Thinking About Surrogacy?
Surrogacy laws in Victoria have significantly changed with the introduction of the Assisted Reproductive Treatment Act 2008. Surrogate mothers are no longer required to be infertile to act as a surrogate for another couple. Measures have also been put in place to transfer parentage to the commissioning parent/s after the child is born.
All surrogacy arrangements in Victoria must be approved by the Patient Review Panel. When considering whether to approve a surrogacy arrangement, the Panel must be satisfied that:
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The commissioning parent/s meet the eligibility criteria for treatment;
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The surrogate’s oocyte (egg) will not be used in the conception of the child;
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The surrogate has previously carried a pregnancy and given birth to a live child;
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The surrogate is at least 25 years of age;
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All parties have received counselling and legal advice;
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All parties are aware of and understand the personal and legal consequences of the arrangement;
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All parties are prepared for the consequences if the arrangement does not proceed in accordance with their intentions including if the commissioning parent/s decide not to accept the child once born and also if the surrogate refuses to relinquish the child to the commissioning parent/s;
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All parties are able to make informed decisions about proceeding with the arrangement.
All surrogacy arrangements must be altruistic, that is, the surrogate cannot be paid to act as a surrogate. However, the surrogate can be reimbursed for costs incurred by her as a direct consequence of entering into the surrogacy arrangement.
All parties must complete a criminal records check and a child protection order check prior to entering a surrogacy arrangement.
Parentage
A woman who gives birth to a baby in Victoria is deemed to be its mother and is recorded on the birth certificate as being so. Her partner, if she has one, is recorded as the father or parent.
The commissioning parent/s of a child born under a surrogacy arrangement can apply to the Supreme or County Court for a substitute parentage order if the child was conceived as a result of a treatment procedure in Victoria and if the commissioning parent/s lives in Victoria at the time of making the application. A substitute parentage order will name the commissioning parent/s as the child’s legal parent/s. An application for a substitute parentage order must be made no less than 28 days and no more than 6 months after the child is born.
When considering an application, the Court must be satisfied that:
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Making the order is in the best interests of the child;
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If the surrogacy arrangement was commissioned with the assistance of a registered ART provider, that the Patient Review Panel approved the surrogacy arrangement before it was entered into;
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The child is living with the commissioning parent/s at the time the application is made;
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The surrogate (and her partner, if any) has received no material benefit from the surrogacy arrangement;
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The surrogate (and her partner, if any) freely consents to the order.
How do I find a surrogate?
As surrogacy arrangements in Victoria must be altruistic, it can be difficult to find a suitable surrogate. A friend or relative may offer to act as a surrogate for you. It is important to know that Victorian law prohibits advertising or publishing the fact that you are seeking a surrogate. This includes placing an advertisement in a newspaper, publishing through television, radio or the Internet or publicising through other means to the public.
I am interested in becoming a surrogate
As with those who are seeking a surrogate, Victorian law prevents people from advertising or publishing that they are willing to act as a surrogate for a person or couple. This also includes advertising that you are willing to accept benefits under a surrogacy arrangement.
Further information
For information on how to apply to the Patient Review Panel to carry out a surrogacy arrangement, visit the Patient Review Panel website
