Surrogacy and donor conception

Surrogacy is an arrangement where a woman (the birth mother or surrogate) agrees to become pregnant and give birth to a child with the intention that the child will be raised by another person or persons (the intended parents). In Australia, altruistic surrogacy — where the surrogate does not receive payment beyond reimbursement of reasonable expenses — is legal in all states and territories. Commercial surrogacy, where the surrogate receives a fee or material benefit beyond reasonable costs, is a criminal offence across Australia.

Altruistic surrogacy involves a surrogate who carries a child without receiving payment, reward, or material benefit beyond the reimbursement of her reasonable surrogacy costs — such as medical expenses, counselling, legal costs, insurance premiums, and lost earnings during the pregnancy.

Commercial surrogacy involves a payment, fee, or material advantage beyond these reasonable costs. All Australian jurisdictions prohibit commercial surrogacy, and entering into a commercial surrogacy arrangement is a criminal offence.

Governing legislation — Victoria: Assisted Reproductive Treatment Act 2008; NSW: Surrogacy Act 2010; Queensland: Surrogacy Act 2010; Tasmania: Surrogacy Act 2012; ACT: Parentage Act 2004; Western Australia: Surrogacy Act 2008

Pre-approval requirements — Victoria requires prior approval by the Patient Review Panel. Most other states do not require pre-approval, and instead assess eligibility at the parentage order stage.

Minimum age of surrogate — Typically 25 years (Queensland, Western Australia), though some jurisdictions allow younger surrogates in certain circumstances (ACT: 18 with court approval).

Residency requirements — Some states require intended parents to reside in that state (for example, Queensland and Western Australia); others are more flexible.

Previous birth requirement — Victoria requires the surrogate to have previously given birth. This varies in other states.

Medical or social need — Most jurisdictions require a demonstrated medical or social need for the surrogacy arrangement.

Because of these differences, specialist legal advice is essential — particularly where the surrogacy arrangement involves parties in different states.

A parentage order is a court order that transfers the legal parentage of a child born through a surrogacy arrangement from the birth mother (and her partner, if applicable) to the intended parents. Until a parentage order is made, the birth mother is recognised at law as the child's parent. Applications for parentage orders are typically made to the relevant state or territory court after the child is born — usually between 4 weeks and 6 months after birth, depending on the jurisdiction. The court must be satisfied that the arrangement meets all legislative requirements and that the order is in the best interests of the child.

Yes. In every Australian state and territory, independent legal advice is a mandatory requirement before entering into a surrogacy arrangement if you wish to obtain a parentage order. This means the intended parents must receive advice from one lawyer, and the surrogate (and her partner, if applicable) must receive advice from a separate, independent lawyer. The legal advice must cover the nature and implications of the surrogacy arrangement, including the rights and responsibilities of each party, the process for obtaining a parentage order, and the legal consequences of the arrangement.

When a donor provides their genetic material (sperm or eggs) for use in a surrogacy arrangement, the legal implications for parentage must be carefully considered. Under Australian law, parentage presumptions contained in state legislation may affect a donor's legal status — for example, if a donor is in a relationship with an intended parent, they may be presumed to be a legal parent of the child. A properly drafted donor agreement, together with independent legal advice, helps to clarify the donor's role and ensure that parentage is correctly attributed when the parentage order is made. We provide specialist advice to donors to protect their interests and ensure certainty for all parties.

Yes. Victoria's surrogacy framework, governed by the Assisted Reproductive Treatment Act 2008 (Vic), permits altruistic surrogacy arrangements subject to specific requirements. Key features of the Victorian framework include the need for prior approval from the Patient Review Panel, a requirement that the surrogate has previously given birth to a live child, that all parties receive independent legal advice and counselling, and that there is a demonstrated medical need for the arrangement. Victorian intended parents may also enter into surrogacy arrangements in other states, though careful legal advice is needed to navigate cross-jurisdictional requirements and ensure the intended parents can obtain a parentage order.

No. In all Australian jurisdictions, a surrogacy arrangement is not legally enforceable — meaning the court cannot compel the surrogate to relinquish the child, nor can the intended parents be compelled to accept custody. However, an obligation to reimburse the surrogate's reasonable expenses is generally enforceable. The non-enforceability of surrogacy arrangements underscores the importance of thorough legal advice, counselling, and careful selection of all parties before entering into the arrangement. The legal transfer of parentage occurs only when the court makes a parentage order after the child is born.

While a surrogate cannot be paid a fee, the intended parents may reimburse the surrogate's reasonable surrogacy costs. These typically include:

• Reasonable medical costs not covered by Medicare or private health insurance

• Counselling costs for the surrogate and her partner

• Legal costs for obtaining independent legal advice

• Health, disability, or life insurance premiums taken out because of the surrogacy

• Lost earnings due to pregnancy-related leave (usually capped at approximately two months around the birth)

• Travel and accommodation costs associated with the arrangement

• Other reasonable costs associated with the pregnancy, birth, and parentage order process

The specific costs that may be reimbursed vary by jurisdiction, and it is important to ensure that all payments remain within the bounds of what is permitted to avoid the arrangement being classified as a commercial surrogacy arrangement.

This is when you need an experienced family lawyer to assist. An urgent parenting application may be required to the FCFCOA, seeking orders from the court to determine the interim and long term care of the child.  In those proceedings the Court will have regard to the intention of the parties, and if this is documented by way of a Surrogacy Agreement then this will become key evidence in the case.  

This occurred recently in the case of Lamb and Anor & Shaw [2017] FamCA 769, where a surrogate refused to relinquish the child following the birth.