With many people affected by infertility, surrogacy is fast becoming a reality in our society. However, it is a topic which generates strong debate about ethical, political and legal issues in relation to the fundamental question of “Who is a parent?

In a surrogacy arrangement, the surrogate carries a child for another person or a same or opposite sex couple with the intention of surrendering its care to the “commissioning” or “intending” parents.

There are 2 types of surrogacy arrangements:

altruistic surrogacy

  • the surrogate receives no compensation other than her pregnancy expenses

 commercial surrogacy

  • the surrogate receives a monetary reward

As Australian law currently stands:

  • It is legal to enter into altruistic surrogacy arrangements within Australia. However, all states and territories have their own legislation and the rules and requirements differ across the board.
  • It is illegal to enter into commercial surrogacy arrangements within Australia.
  • It is legal for Victorian, South Australian, Western Australian and Tasmanian residents to enter into overseas commercial surrogacy arrangements. Residents of all other states and territories are prohibited from doing so and risk prosecution if they do.

Those entering into surrogacy arrangements are not automatically legally recognised as a parent of any child born, even if they are named on a birth certificate. The stark reality is that there is no legal presumption of parentage in favour of commissioning parents.

Provided certain preconditions are met, the relevant provisions of the Family Law Act 1975 state that the surrogate (and her spouse or de facto partner, if any) is presumed to be the legal parent of any child born of a surrogacy arrangement. This is the case even though the surrogate and her partner are not biologically related to the child.

Appropriate Court Orders are needed to enable the commissioning parents in a surrogacy arrangement to legally function as parents. They then have the legal standing to make important decisions about their child’s long-term care, welfare and development (such as in relation to medical, educational and cultural/religious matters and a child’s surname) and to obtain a passport for the child.

Significant changes made to Victorian legislation in 2008 have legalised altruistic surrogacy arrangements. These include:

  • If the surrogacy arrangement has occurred with the assistance of a registered IVF clinic, then the commissioning parents can apply to the County Court for an Order naming them as parents on a child’s birth certificate. This is known as a “substitute parentage Order” and, if granted, a new birth certificate is used. The Court application must be made no earlier than 4 weeks and no later than 6 months after the birth of a child.
  • If the surrogacy arrangement has occurred without the assistance of a registered IVF clinic, then additional requirements exist before the commissioning parents can apply to the Court for the substitute parentage Order. Amongst other matters, the surrogate must be at least 25 years old. All parties to the surrogacy arrangement must also have received counselling about the social, psychological and legal consequences of the arrangement.

It is critical to be aware that written surrogacy agreements are not binding and there is no legal mechanism for compelling a surrogate to relinquish the care of any child born to the commissioning parents.

Confused? Curious? The law in this area is complex, controversial and highly emotive. It is wise to obtain expert legal advice in the early planning and information gathering stages when surrogacy is being considered.