Is Surrogacy Legal in Australia?

Australians and non-Australians interested in surrogacy are always curious to know the answer to: Is Surrogacy Legal in Australia? We will answer this here.

Surrogacy is a process where a woman who is known as a surrogate carries and delivers a child for another person or a couple who are known as intended parents. It allows people who otherwise would not be able to have children and grow their families. Surrogacy is not a recently discovered process, and there is documented evidence that it was widely practiced in ancient times.

What are the types of surrogacy?

Different forms of surrogacy are recognized in different areas, they include:

Gestational surrogacy 

This is the type of surrogacy where a woman known as the surrogate carries a pregnancy to term and delivers a child for an individual or couple known as the intended parents. The egg and sperm used for pregnancy and fertilization are gotten from the intended parents or donors. After fertilization, the embryo is then transferred to the surrogate mother through the IVF process. This way, the surrogate mother does not have any genetic connection or relationship with the fetus.

Traditional surrogacy 

The surrogate mother donates her egg to be fertilized by sperm from the intended father or a sperm donor. The fertilization is usually done through intrauterine insemination (IUI) of the donated sperm. This type of surrogacy creates a genetic relationship between the fetus with the surrogate mother. This relationship may cause legal and emotional problems when the baby eventually gets delivered. Several countries even have laws against traditional surrogacy for this reason.

Altruistic surrogacy

This is an arrangement where the surrogate does not receive any payment or any financial reward for acting as a surrogate. The intended parents may however reimburse the surrogate for any medical expenses and other miscellaneous costs which she incurred in the surrogacy process. In this process, there is no financial incentive for the surrogate for agreeing to be a surrogate, including goods and services.

Commercial surrogacy 

This is an arrangement where the surrogate agrees to act as a surrogate in return for financial rewards and incentives from the intended parents. These payments are in addition to the covering or reimbursement of any expenses that the surrogate may have incurred in the process of the pregnancy.

What are the reasons for surrogacy?

Surrogacy can help some couples who want children but are unable to due to various reasons, as well as for others who desire children but are in different situations. Some of the reasons why some individuals want to embark on the surrogacy journey include:

• Infertility issues that prevent couples from getting pregnant
• Issues that interfere with the ability of the mother to carry a pregnancy to term
• Health issues that interfere with the ability of a mother to get pregnant like uterine fibroids
• In instances where same-sex couples wish to have children, this may be between two men or two women
• Single individuals that want to have biological children of their own

What are the criteria for being a surrogate?

The qualifications for an individual to become a surrogate vary from country to country, state to state, and agency to agency, but some of the broad considerations include:

• Age – the candidates must at least be 21 years of age before they can be considered for surrogacy. The specific age range however may vary by location.
• Reproductive history – the individual has to have at least carried one pregnancy to term without any complications. They also have to have less than five vaginal deliveries or two cesarean sections.
• Lifestyle – the surrogates must have a support system or live in a supportive environment. They must also be free from narcotics and alcohol abuse.
• Tests – potential surrogates also have to undergo screenings, which include health, psychological and emotional screening.

Surrogates are not the only ones that undergo screenings, intended parents also have certain tests or screenings to undergo, and these include:

• Testing for any genetic diseases that can be transmitted to the child
• Providing complete medical histories
• Physical health screenings
• Sexually transmitted infection screening
• The intended parents should also be able to bear the financial involvements that come with the surrogacy journey.

Surrogacy and Australia  

The laws regulating surrogacy in Australia differ from state to state; the Northern Territory has no regulations in place at all. This makes it a bit difficult to navigate the restrictions around the surrogates and the intended parents. Some general rules have been put in place which can help couples or individuals who are considering surrogacy to understand what is legal and what is not in their area. These laws are binding for all the areas in Australia apart from the Northern Territory. They include:

• It is illegal to enter into a commercial surrogacy agreement anywhere in Australia.
• The surrogate must be at least 25 years old to enter into any surrogacy agreements. This law changes in South Australia (SA) and Australian Capital Territory (ACT) as the minimum age for surrogacy is 18 years.
• Surrogacy is open to same-sex couples in all areas of Australia except Western Australia (WA)
• There should be medical conditions for surrogacy in most jurisdictions. However, New South Wales (NSW), Tasmania (TAS), Queensland (QLD), and Victoria (VIC) allow surrogacy for social reasons such as the case concerning same-sex couples or single individuals.
• All states and territories allow same-sex couples to use surrogacy apart from WA.
• WA disallows age as a valid medical validation for surrogacy.
• Unless they have given birth to their children, women in VIC, TAS, and ACT cannot serve as surrogates.
• In all states and territories apart from ACT, single women are eligible to become surrogates.
• All states and territories apart from VIC, and the ACT require that a written agreement outlining the surrogacy terms are in existence.
• In Australia, traditional surrogacy is legal everywhere apart from ACT.
• In the ACT, QLD and VIC, individuals are not allowed to advertise that they are looking for surrogates or that they want to be one. This restriction includes online publications.

The laws governing surrogacy in Australia are quite confusing as they differ from area to area. Therefore, it is advised for couples who want to embark on the surrogacy journey to consult any experienced family lawyer in their state or territory.