Surrogacy
What is surrogacy?
When a woman is unable to safely carry a pregnancy on her own or the intended parents are unable to conceive, finding a surrogate mother to do so may be an option.
There are two types of surrogacy:
- Traditional surrogacy: the surrogate mother uses her own eggs to conceive with sperm from an intended father or donor sperm.
- Gestational surrogacy: the embryo transferred to the uterus of the surrogate mother uses gametes from the intended parents where available, or there may be use of donor oocytes or donor sperm from a third party.
Not all fertility clinics allow traditional surrogacy so you should always check which type of surrogacy they facilitate. Australia and New Zealand have different regulations, and within Australia, the states and territories have their own set of rules.
In short, surrogacy laws in most Australian states/territories and New Zealand follow a set of basic principles.
- The intended parents are unable to carry a baby themselves
- The surrogacy arrangement is not commercial so the surrogate cannot be paid
- Costs involved in the treatment, pregnancy and birth should be paid by the intended parents
- Everyone involved must receive counselling and legal advice
- The surrogate (and her partner if she has one) are listed on the birth certificate and the intended parents can apply to the court for a Parentage Order
The intended parents should qualify for surrogacy in their jurisdiction:
This typically means that a fertility specialist will recommend surrogacy for your individual case.
Finding a surrogate:
In some jurisdictions, it is illegal to advertise for a surrogate. In that case you may discuss this option with your friends and family members.
Medical assessment:
The surrogate meets a fertility specialist for a medical examination
Counselling and legal advice:
Everyone involved (intended parents and surrogate) have counselling and get legal advice.
Psychological assessment:
In some jurisdictions, everyone involved will need to undergo a psychological assessment
Approval:
The surrogacy arrangement is approved and the process can go-ahead
State policies/NZ legislation
The National Health and Medical Research Council (NHMRC) has also issued ethical guidelines in relation to assisted reproductive technology (ART). Four States have enacted their own ART legislation - New South Wales, Victoria, South Australia and Western Australia. The NHMRC guidelines apply in jurisdictions without a legislative regime.
Here’s a quick summary of the legislation per jurisdiction:
- NSW: surrogate minimum age is 25, single women and gay couples are allowed to find a surrogate, traditional surrogacy is allowed
- VIC: surrogate minimum age is 25, single women and gay couples are allowed to find a surrogate.
- QLD: surrogate minimum age is 25, single women and gay couples are allowed to find a surrogate, traditional surrogacy is allowed
- SA: surrogate minimum age is 18, gay couples are allowed to find a surrogate, single women aren’t, traditional surrogacy is allowed
- WA: surrogate minimum age is 25, single women are allowed to find a surrogate, gay couples are not (though this is under review), traditional surrogacy is allowed
- TAS: surrogate minimum age is 25, single women and gay couples are allowed to find a surrogate, traditional surrogacy is allowed
- ACT: surrogate minimum age is 18, gay couples are allowed to find a surrogate, single women are not, traditional surrogacy is not allowed
- NT: Surrogate minimum age is 25 (noting exceptions are allowable by the local court), one person or persons are allowed to find a surrogate and traditional surrogacy is allowed.
- New Zealand: Following Ethics Committee approval, surrogate minimum age 20, gay couples are allowed to find a surrogate; single women and traditional surrogacy also allowed on case by case basis.
