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Surrogacy

5-minute read

Surrogacy involves a woman agreeing to carry a baby for someone else. After the baby is born, the birth mother gives custody and guardianship to the intended parent or parents. Surrogacy has complex legal and medical steps that must be met. It’s important to be aware of the process, seek professional advice and build supportive networks.

Who is involved?

A woman who agrees to carry and give birth to a baby for another person is a surrogate or birth mother. Parents of a baby born through a surrogacy arrangement are known as intended or commissioning parents.

Many other people need to be considered before taking this life-changing step, including the partner and children of a surrogate mother, the child itself and any other children of the intended parent(s).

Types of surrogacy

There are different types of surrogacy:

Altruistic (non-commercial) surrogacy: The birth mother does not receive any payment. This is allowed in Australia. Some states allow reasonable reimbursement of the surrogate mother's medical expenses.

Traditional surrogacy: The surrogate mother provides her own egg, which is inseminated with the commissioning father's sperm. Since the baby is biologically the surrogate mother's own child, there may be future issues concerning the child's future right to information about her identity. Traditional surrogacy is not usually offered in clinics in Australia due to legal requirements, but it is possible for the surrogate mother to inseminate herself at home. It is also possible to practise traditional surrogacy through an overseas clinic.

Commercial surrogacy: This involves a birth mother receiving payment or material benefit. It is banned in Australia.

It is not legal to pay a third party to arrange a surrogacy and advertising for a surrogate parent or commissioning parent is generally not allowed.

Assisted reproduction

Surrogacy might include assisted reproduction treatment (such as IVF), using:

  • the surrogate mother's own eggs
  • a donor's eggs
  • intended mother's eggs
  • intended father's sperm
  • donor sperm

Regulating surrogacy

Surrogate mothers and intended parents must make a formal surrogacy agreement, usually before conception.

There are strict regulations and eligibility requirements that must be met before entering into a surrogacy agreement. There are also legal processes to complete following the birth. Each state and territory, with the exception of the Northern Territory, have laws that regulate surrogacy:

The Northern Territory has no specific laws about surrogacy, and no provision for transfer of legal parentage. This makes surrogacy difficult in the Northern Territory.

Not everybody can make a surrogacy agreement. Some states don't allow certain people to make surrogacy agreements. The criteria might include age, health, relationship status, sexual orientation and the gender of the intended parent(s).

It is illegal to pay someone else to arrange a surrogacy, and in some states advertising for a surrogate parent or commissioning parent is not allowed.

International surrogacy arrangements

Different laws and processes are involved when entering into an international surrogacy arrangement. It is very important to seek professional advice.

Parentage order

A court order is required to transfer parentage of a baby born through a surrogacy arrangement. The process of obtaining a parentage order is different in each state and territory, so it is best to get legal advice before entering into an arrangement.

Counselling

Counselling is a requirement of surrogacy arrangements. A counsellor can help everyone understand the complex issues surrounding surrogacy, such as immediate issues (such as the process of conceiving) to potential long-term implications for all parties, including the child.

Practicalities and costs

Legal advice is available for surrogacy agreements and parentage orders. It is generally seen as reasonable for the intended parent(s) to meet legal and medical costs of a surrogacy arrangement.

It's also important to seek specific advice on medical expenses. Medicare and private health insurers may have eligibility criteria for assisted reproductive treatments.

Finding a surrogate

The surrogate mother can be someone you know or someone you don't know.

As it is illegal to advertise for a surrogate in Australia. You may consider finding someone through your social network or by connecting with Surrogacy Australia.

There are many questions you should consider when choosing a surrogate mother. Take your time.

For more information on finding a surrogate, VARTA has a brochure Finding a surrogate.

Being a surrogate

Offering to carry a baby for someone else to raise is a very generous act. Before making any decisions, it's important to understand the process and know your rights. If you have a partner and children, they will also need to be considered and included in discussions. It's a big decision. Take your time.

Eligibility

It's best if surrogates are 25 to 40 years old and are already mothers themselves and have finished their family. They should be physically and mentally healthy, settled and have a good support network. They should be motivated by a desire to help others.

It's important to think carefully about the physical and emotional implications of carrying a baby for someone else. Think about your relationship with the parents and your future relationship with the child.

Your rights

As the surrogate mother you have financial rights. It's important to discuss all aspects of carrying a baby with the intended parents, and for them to understand your rights. You have the right to choose how you manage the pregnancy without interference.

Looking after yourself

Being pregnant can be tiring, so it's important to take care of yourself and to discuss with health professionals any concerns you might have before and during the pregnancy.

Pregnancy can affect your emotional wellbeing and relationships. Maintaining healthy relationships can provide support during the pregnancy and after the birth.

More information

If you need advice or emotional support about being a surrogate, talk to a Pregnancy Birth and Baby maternal child care nurse on 1800 882 436.

You can find more information about surrogacy at Surrogacy Australia and the Victorian Assisted Reproductive Treatment Authority (VARTA)

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Last reviewed: December 2019


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Need more information?

Surrogacy - Assisted reproductive technology

The Surrogacy Act 2010defines a surrogacy arrangement as being: an arrangement under which a woman agrees to become, or to try to become, pregnant with a child and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a pre-conception surrogacy arrangement), or an arrangement under which a pregnant woman agrees that the parentage of a child born as a result of the pregnancy is to be transferred to another person or persons (a post-conception surrogacy arrangement)

Read more on NSW Health website

The legal side of surrogacy | VARTA

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 takeyour individual circumstances into account. Surrogacy and the law in Victoria In Victoria, the Assisted

Read more on VARTA - Victorian Assisted Reproductive Treatment Authority website

Surrogacy - Better Health Channel

Surrogacy is a form of assisted reproductive treatment (ART) in which a woman carries a child within her uterus on behalf of another person or couple.

Read more on Better Health Channel website

Surrogacy | VARTA

Surrogacy is a form of assisted reproductive treatment (ART) in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple, referred to asthe 'commissioning parent(s)'or 'intended parent(s)'.

Read more on VARTA - Victorian Assisted Reproductive Treatment Authority website

International surrogacy | VARTA

Victorian law does not prevent residents from travelling overseas for surrogacy. However, VARTA advises prospective parents to considersurrogacy locally as there are many benefitsand to seekas much information as possible about international surrogacy before embarking on this complex journey.

Read more on VARTA - Victorian Assisted Reproductive Treatment Authority website

Surrogacy in Australia | VARTA

Benefits of domestic surrogacy Engaging an Australiansurrogate has the benefit of legal protections that ensure that she is known to your potential child and to you. She isperhaps more likely to have a similar outlook, cultural backgroundand language to your own.

Read more on VARTA - Victorian Assisted Reproductive Treatment Authority website

Surrogacy perspectives | VARTA

Mother, surrogate and child share their story The three videos below show different perspectives about surrogacy including those of an intended mother, a surrogate and one presenting a childs outlook.

Read more on VARTA - Victorian Assisted Reproductive Treatment Authority website

The surrogacy process | VARTA

The process outlined below is a guide and the order in which the necessary steps are taken can vary. There is some degree of flexibility, depending on your fertility specialist and the clinic you attend. [collapse collapsed] Step1 - Initial consultation This should be sought by all parties considering surrogacy and can be done via a number of avenues such as:

Read more on VARTA - Victorian Assisted Reproductive Treatment Authority website

Considering IVF, donor treatment or surrogacy overseas? | VARTA

If you are thinking about undertakingIVF, donor treatmentor surrogacy in another country, make sure you are aware of the laws and regulations of that country. Regulation of assisted reproductive treatment varies between countries.

Read more on VARTA - Victorian Assisted Reproductive Treatment Authority website

Donor breast milk and milk banks

If it's not possible to breastfeed a baby because they're premature, sick or born via surrogacy or to same-sex parents, human donor milk is a great alternative.

Read more on Pregnancy, Birth & Baby website

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This information is for your general information and use only and is not intended to be used as medical advice and should not be used to diagnose, treat, cure or prevent any medical condition, nor should it be used for therapeutic purposes.

The information is not a substitute for independent professional advice and should not be used as an alternative to professional health care. If you have a particular medical problem, please consult a healthcare professional.

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