Surrogacy
9-minute read
Key facts
- Surrogacy is an arrangement where a person carries and gives birth to a baby for another person, for example, a couple who can’t be pregnant themselves.
- In Australia, most commonly the surrogate is not biologically related to the baby. An embryo from the intended parent(s) and/or donor(s) is used.
- In Australia, it is illegal to pay a surrogate, however the intended parents can pay for the costs of the pregnancy
- Each state and territory has its own laws to regulate surrogacy (except for the Northern Territory). It’s important to get legal advice before you start the process.
- Surrogacy is very complex and it’s important for everyone involved to have counselling as part of the process.
What is surrogacy?
Surrogacy involves a person agreeing to carry and give birth to a baby for someone else. After the baby is born, the birth parent 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 person who agrees to carry and give birth to a baby for someone else is known as the surrogate or birth parent. The person or couple who will receive the baby once it’s born are known as the intended or commissioning parent(s).
Many other people need to be considered before taking this life-changing step, including the partner and children of a surrogate, any other children of the intended parent(s) and egg or sperm donors (if any) and their families.
Why might I need to use surrogacy?
Surrogacy gives people an opportunity to have a child if they can’t be pregnant themselves.
People who might want to use surrogacy include:
- females who have a problem with their uterus or have had their uterus removed
- females with health conditions that could make it dangerous for them to be pregnant
- single or gay males
What types of surrogacy are there?
Traditional surrogacy
The surrogate provides her own egg, which is inseminated with the commissioning parent’s sperm. This can be done using in vitro insemination (IVF) or artificial insemination. In this case, the baby is biologically related to the surrogate.
Traditional surrogacy is not allowed in some states in Australia.
Gestational surrogacy
In this type of pregnancy, an embryo is transferred into the surrogate’s uterus. The embryo is formed from the egg and sperm of the intended parents or from donors, using IVF. The egg doesn’t come from the surrogate.
This is the most common type of surrogacy in Australia.
What types of surrogacy arrangements are there?
Altruistic surrogacy
The surrogate does not receive any payment; however, the intended parents pay for costs relating to the pregnancy. This is legal in Australia, but each state has its own specific regulations.
Commercial surrogacy
This involves a surrogate receiving payment or material benefit for being a surrogate, as well as the intended parents paying for costs relating to the pregnancy. It is banned in Australia. In some states it is also illegal for residents to use commercial surrogacy overseas.
How is surrogacy regulated?
Surrogates 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, except for the Northern Territory, has its own laws that regulate surrogacy:
- Australian Capital Territory
- New South Wales
- Northern Territory
- South Australia
- Tasmania
- Queensland
- Victoria
- Western Australia
Some states don't allow certain people to make surrogacy agreements. The criteria might include age, state of residence, health status, relationship status, sexual orientation, gender of the intended parent(s) and whether the surrogate has had children previously. Some states only allow gestational surrogacy while others also allow traditional surrogacy.
In some states, advertising in order to find a surrogate parent or commissioning parent is not allowed.
In Australia, surrogacy arrangements can’t be enforced. This means that if the surrogate doesn’t want to give up the baby or the intended parents don’t want to take it, they can’t be forced to.
International surrogacy arrangements
Different laws and processes are involved when entering into an international surrogacy arrangement. This means an arrangement with a surrogate who lives overseas. It is very important to seek professional legal advice.
When the baby is born, the surrogate and their partner, if they have one, are legally considered its parents. 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.
How do I get started?
If you are interested in surrogacy, the first step is to see a fertility specialist. You can discuss the process with your doctor, who can give you a referral.
You may choose to discuss it with your family and friends and ask them for help.
Is counselling necessary?
Counselling is a requirement of surrogacy arrangements. Counselling can help everyone involved understand the complex issues surrounding surrogacy and make sure that they’re comfortable with the process.
How much does it cost?
Legal advice is available for surrogacy agreements and parentage orders. It is generally considered 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 might not cover some or all of these expenses for a surrogate.
There might be other costs too, such as counselling or travel.
How do I find a surrogate?
The surrogate can be someone you know or someone you don't know.
You may consider finding someone through your social network or by connecting with Surrogacy Australia. You can also check whether it’s legal in your state to advertise for a surrogate.
There are many questions you might consider when choosing a surrogate. Take your time.
Can I become 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, are already parents 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 intended parents and your future relationship with the child.
Your rights
As the surrogate, 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
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.
Where can I get more information about surrogacy?
You can find more information about surrogacy from:
If you need advice or emotional support about being a surrogate, talk to a Pregnancy Birth and Baby maternal child care nurse.
Speak to a maternal child health nurse
Call Pregnancy, Birth and Baby to speak to a maternal child health nurse on 1800 882 436 or video call. Available 7am to midnight (AET), 7 days a week.
Learn more here about the development and quality assurance of healthdirect content.
Last reviewed: June 2022
