The legal side of surrogacy

It’s the long-term ramifications of that relationship between all parties. They’re all the things that you need to consider from day one. And even though a lot of couples would be so desperate to have a child, and this is their only means of having a child, I think if things do go wrong they can go really wrong. Leanne

Within Australia, surrogacy is legal but paying a surrogate beyond medical and other reasonable expenses is not. The laws affecting surrogacy vary across States and Territories. If you are considering a surrogacy arrangement you should always seek advice locally, to take your individual circumstances into account.

Surrogacy and the law in Victoria

In Victoria, the Assisted Reproductive Treatment Act 2008 allows surrogacy for individuals or couples who may not otherwise be able to have children.

A clinic may only carry out treatment for surrogacy if the surrogacy arrangement has been approved by the Patient Review Panel. The panel may approve a surrogacy arrangement if satisfied that:

  • all parties have received counselling and legal advice
  • the surrogacy arrangement is altruistic. Refer to financial costs of surrogacy for more information
  • the commissioning parent(s):
    • are infertile or unable to carry a baby or give birth - this includes social infertility (i.e. being a single male or being in a same-sex relationship), or
    • there is a likely medical risk to the mother or baby if the commissioning mother attempted to become pregnant herself.
  • The surrogate:
    • is at least 25 years old
    • has previously given birth to a live child
    • does not use her own eggs in the surrogacy arrangement.
  • All parties, including the commissioning parent(s), the surrogate and the surrogate’s partner (if any) have received counselling and independent legal advice.  If a donor is also involved, they will also need to have counselling and may need to seek legal advice also.

In addition, all parties will also need to complete a criminal record check and a child protection order check.

Parentage

A woman who gives birth to a baby in Victoria is initially legally recognised 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 other parent.

If a surrogacy arrangement took place in Victoria

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 six months after the child is born.

The court may make a substitute parentage order if it is satisfied that:

  • making the order is in the best interests of the child
  • if the surrogacy arrangement was commissioned with the assistance of a Victorian registered ART clinic, that the Patient Review Panel approved the surrogacy arrangement before it was entered into
  • if the surrogacy arrangement was commissioned without the assistance of an ART clinic, the surrogate mother was at least 25 years of age before entering the surrogacy arrangement and both counselling and information about the legal consequences of making a substitute parentage order were obtained
  • the child is living with the commissioning parent(s) at the time the application is made
  • the surrogate (and her partner, if any) did not received any material benefit from the surrogacy arrangement
  • the surrogate (and her partner, if any) freely consents to the order.

If a surrogacy arrangement took place interstate

As of 30 October 2014, children born in Victoria through a non-commercial surrogacy arrangement in another Australian State or the Australian Capital Territory will now have their parentage legally recognised. Treatment in the Northern Territory will not be covered by the new arrangements as it does not have laws regulating surrogacy. The new laws will apply to children who have previously been born in Victoria under an interstate surrogacy arrangement, as well as for children born in the future.

Victoria's Registrar of Births, Deaths and Marriages will now be able to amend the birth registration of a child conceived under an interstate surrogacy arrangement, once certain requirements are met. These requirements include a Victorian registration order being made by the County Court or Supreme Court, and a corresponding surrogacy parentage order being obtained from the other Australian State or Territory. The Registrar will then change the child's birth record to name the commissioning parents as the child's parents and issue a new birth certificate to the commissioning parents.

The legislation ensures that Victorian legal requirements for surrogacy and assisted reproductive treatment cannot be ignored. Parents seeking a Victorian court order for surrogacy arrangements entered into after Victorian surrogacy laws were in place will need to show that they had a genuine connection to the State or Territory in which the child was conceived and that they did not move to that location in order to avoid Victorian surrogacy laws. For surrogacy arrangements entered into before Victorian surrogacy laws were in place, parents will only need to show that the order is in the best interests of the child. 

Tip

Legally drawn-up surrogacy agreements are not mandatory in Victoria, largely because it is extremely difficult to anticipate every contentious issue or circumstance that may arise throughout a surrogacy arrangement. However, some form of surrogacy agreement is highly recommended, as it makes clear everyone’s intentions and may be a good tool for resolving disputes later in the process.