Do Surrogates Get Paid? Here’s What the Surrogacy Laws Say in Australia

surrogacy laws Australia

Do Surrogates Get Paid? Here's What the Surrogacy Laws Say in Australia

28th March 2020

When it comes to starting a family and having children in Australia, there are many struggles a potential parent may face. These may include issues with fertility, with carrying a child to term, as well as lengthy adoption wait times. Surrogacy is another option that a potential parent may wish to consider. However, while surrogacy is perceived to be a practicable option in other countries (such as the US) it is one that is much less explored and understood in Australia – for many reasons. Here’s what the law says in Australia, with a specific focus on the laws in Queensland.

What is Surrogacy?

Surrogacy relates to an arrangement between a woman (the birth mother) and another person or couple (the intended parents) where the birth mother agrees to become pregnant with a child for the intended parents. When the baby is born, the birth mother gives the baby to the intended parents.

Is Surrogacy Legal in Australia?

Many people are surprised to find that surrogacy is in fact legal in Australia – provided the surrogacy is non-commercial. Surrogacy is regulated at the state level, meaning there is no uniformity in surrogacy laws in Australia. In Queensland the surrogacy laws are regulated by the Surrogacy Act 2010.

All States have surrogacy regulations in place, apart from the Northern Territory, where there are no laws in place.  This means surrogacy is neither legal, nor illegal in the Northern Territory, and intended parents who live here cannot enter into a formal surrogacy agreement. Due to this, many intended parents will relocate to another State in order to have a formal agreement in place.

Can Surrogates Get Paid?

One instance where the surrogacy laws in Australia are uniform from state to state is in outlining that only altruistic (non-commercial) surrogacy arrangements are legal. This means that any payment or reward to any party in the arrangement is illegal – commercial surrogacy is illegal for Queenslanders, even if arrangements are made overseas. In Queensland, you also cannot advertise for any surrogacy arrangement, whether you are the intended parent, or you are promoting your services as the surrogate.

Some States do allow you to advertise. In SA and WA, you may advertise, and in NSW, you can advertise, as long as the advertisement is not paid for.

As an intended parent, however, you may pay the birth mother for any and all reasonable costs that she has as your surrogate. You will need to agree to these prior to the pregnancy, and this agreement will need to be in writing. What costs the intended parents will need to cover under varies from state to state, and on individual circumstances.

In Queensland, costs that may be incurred include:

  • medical costs for the birth mother such as fertility treatments and doctor’s appointments any costs for your child;
  • life, health or death insurance premiums;
  • counselling costs;
  • legal costs;
  • loss of earnings by the birth mother;
  • other reasonable costs associated with the surrogacy.

As these costs vary from state to state, are difficult to predict, and are usually significant, we advise that you seek legal advice from family lawyers with experience in surrogacy law before considering any agreement.

Pullos Lawyers have assisted in a number of surrogacy cases and can help to determine the likely incurred costs that an intended parent will be expected to cover. Please get in touch.

Who Can Enter Into a Surrogacy Arrangement?

The surrogacy laws in Australia differ slightly from state to state when it comes to who can enter a surrogacy arrangement.

The Act that regulates the laws in Queensland states that any person over the age of 25, regardless of their relationship status, can enter into a non-commercial surrogacy arrangement.

If you are the intended parent(s), you:
• may be married, a de facto couple or single
• do not need a genetic connection to the baby or birth mother
• may use any method for conception, such as in-vitro fertilisation, artificial insemination, self-insemination or natural conception.

The arrangement can only be made prior to the surrogate falling pregnant, and the intended parents must have a medical or social need for surrogacy.

Other requirements for the surrogate include:
• That the parties have undergone counselling;
• That the parties have obtained legal advice about the arrangement;
• There is a written Surrogacy Agreement signed by all the parties.

What Rights Does The Surrogate Have?

The surrogacy laws in Australia all stipulate that the surrogate maintains bodily autonomy throughout her entire pregnancy. You can read what the Queensland Government says here.

This means she is able to make final decisions around her body, even if this is likely to affect the child she is carrying, and despite any pregnancy and birth plans in place.

How Do Intended Parents Become the Child’s Legal Parents?

When the child is born, the birth mother, and their partner (if applicable) will need to register the baby’s birth with their names listed as the child’s parents.

The Intended Parents will then have to apply to the Courts in the state where they live (in Queensland this is the Children’s Court of Queensland) for a Parentage Order so that a birth certificate can be re-issued with their names listed as parents.

Want To Know More About Surrogacy Laws in Australia and / or Queensland?

At Pullos, we specialise in a number of other family law issues, including parental rights, children’s issues, and surrogacy law. If you are considering entering a surrogacy agreement, would like to find out more, or need some legal advice, please contact us to make an appointment for an initial telephone call. Alternately call us to speak to one of our Brisbane specialist family lawyers on (07) 3144 1641 or one of our Gold Coast specialist family lawyers on (07) 5526 3646.

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