For some families, surrogacy provides a path to parenthood when pregnancy isn’t possible or safe. It can also be an act of generosity by those who wish to help others experience the joy of having a child.
But surrogacy is not simply a private arrangement. In Australia, it is governed by detailed laws that aim to protect everyone involved — the intended parents, the surrogate, and most importantly, the child. Understanding how these laws work is essential before anyone begins the process.
What Is Surrogacy?
Surrogacy is an arrangement where a woman (the surrogate) carries and gives birth to a child for another person or couple (the intended parents). The surrogate agrees to relinquish her parental rights after the birth, so that the intended parents can become the child’s legal parents.
There are two main forms of surrogacy:
Altruistic surrogacy, where the surrogate is not paid for carrying the pregnancy, although her reasonable medical, legal, and related expenses can be reimbursed.
Commercial surrogacy, where the surrogate receives payment or other material benefit for acting as a surrogate. This is illegal throughout Australia.
The Legal Framework for Surrogacy in Australia
Surrogacy laws are made at the state and territory level. This means the rules differ slightly depending on where the parties live and where the child is born.
In New South Wales, surrogacy is regulated by the Surrogacy Act 2010 (NSW). Similar laws exist in other jurisdictions, such as Queensland and Victoria, but with some variations.
Despite those differences, all Australian laws share several core principles:
Surrogacy must be altruistic, not commercial.
The parties must receive independent legal advice before conception.
Counselling is mandatory for both the surrogate and the intended parents.
Court approval is required after the birth to transfer legal parentage.
The arrangement must prioritise the best interests of the child.
Internationally, Australia takes a restrictive stance — overseas commercial surrogacy arrangements can expose Australians to significant legal and ethical risks.
Who Can Be a Surrogate or Intended Parent
Under the Surrogacy Act 2010 (NSW):
The surrogate must be at least 25 years old and must have previously given birth to a child.
The intended parents can be a couple (married or de facto, including same-sex couples) or a single person. At least one intended parent must be a resident of NSW.
The arrangement must be made before conception.
All parties must obtain independent legal advice and counselling confirming that they understand the implications of the arrangement.
These requirements are designed to ensure that the decision is fully informed and freely made, without pressure or financial incentive.
The Surrogacy Agreement
Although a surrogacy agreement is required by law, it is important to understand that it is not enforceable in the usual contractual sense.
This means that:
A surrogate cannot be forced to hand over the baby; and
Intended parents cannot be forced to take custody of the child if they change their mind.
The purpose of the agreement is to record the intentions of all parties and to demonstrate to the court that the arrangement was entered into with proper understanding and consent.
The agreement must:
Be in writing and signed by all parties before conception.
Be supported by legal advice for both sides.
Be accompanied by counselling reports.
Specify that the arrangement is altruistic, with only reasonable expenses reimbursed.
Reasonable expenses may include medical costs, insurance, counselling, and legal fees — but not payment for the act of carrying the pregnancy.
The Parentage Order: Transferring Legal Parenthood
When the child is born, the birth mother (the surrogate) is automatically recorded as the child’s legal mother, regardless of genetic connection. If she has a partner, that partner is presumed to be the other legal parent at birth.
For the intended parents to become the child’s legal parents, they must apply for a Parentage Order from the Supreme Court of New South Wales.
The court will only make a Parentage Order if certain strict conditions are met:
The surrogacy arrangement was altruistic and pre-conception.
Both the surrogate and intended parents obtained independent legal advice.
All parties received counselling.
The surrogate freely consents to the order, at least 30 days after the child’s birth.
The order is in the best interests of the child.
The application must generally be filed between 30 days and six months after the birth.
Once the order is made, legal parentage is transferred to the intended parents, and the child’s birth certificate is amended to show them as the legal parents. From that point, the surrogate no longer has parental responsibility.
International Surrogacy: A Complex Legal Landscape
Some intended parents explore surrogacy overseas, often in countries where commercial surrogacy is permitted. However, these arrangements can create serious complications.
Under Australian law, entering into a commercial surrogacy arrangement overseas may itself be a criminal offence for NSW residents. Even when lawful overseas, these arrangements often raise complex questions about citizenship, parentage recognition, and immigration.
Parents returning to Australia with a child born through international surrogacy may need to apply for citizenship by descent and parentage recognition orders, which can be a lengthy and uncertain process.
Legal advice should always be obtained before taking any steps toward an overseas surrogacy arrangement.
Ethical and Emotional Dimensions
Surrogacy is not only a legal process but a deeply emotional journey. It involves navigating complex feelings around parenthood, bodily autonomy, and trust.
For intended parents, the process can be filled with anticipation and anxiety. For surrogates, it requires an extraordinary level of generosity and emotional resilience.
That’s why Australian law insists on counselling — to ensure that everyone understands the emotional realities and has the support needed at every stage. It also helps safeguard the child’s welfare by ensuring stability and openness in how the arrangement is approached.
The Role of a Family Lawyer in Surrogacy Matters
A lawyer experienced in surrogacy law helps ensure that the process complies with the Surrogacy Act 2010 (NSW) and that every legal requirement is met before and after the child’s birth.
This includes:
Drafting or reviewing the surrogacy agreement.
Ensuring both parties obtain the required legal advice and counselling.
Preparing the application for the Parentage Order.
Advising on related family law and parental rights issues.
Guiding intended parents through the recognition of overseas surrogacy arrangements, where applicable.
Because the legal process is so closely linked to emotional wellbeing and the best interests of the child, having experienced guidance is invaluable from the outset.
Key Takeaways
Surrogacy is legal in Australia only when altruistic.
Each state and territory has its own rules — in NSW, these are set out in the Surrogacy Act 2010 (NSW).
The process requires counselling, legal advice, and court approval.
A Parentage Order is essential to transfer legal parenthood to the intended parents.
Overseas surrogacy carries significant legal and ethical risks.
Surrogacy Process in NSW
If you’re exploring the process of surrogacy in New South Wales and beyond, you may also find the following guides helpful in broadening your understanding of the legal, practical and cross-border issues involved:
Surrogacy in Australia — an overview of how altruistic surrogacy works nationally and what legal frameworks apply.
The Legal Process of Surrogacy in NSW — explains the steps, key requirements and considerations under NSW law.
Altruistic vs Commercial Surrogacy: What’s Legal in Australia — compares the permitted and prohibited forms of surrogacy in Australia.
Who Are the Legal Parents in a Surrogacy Arrangement — clarifies how parentage is determined and transferred following a surrogacy arrangement.
How Courts Decide Parentage Orders in NSW Surrogacy Cases — details the criteria, legal tests and process involved in parentage order applications.
What Happens If a Surrogacy Arrangement Breaks Down — discusses the risks, legal consequences and fallback options where arrangements do not proceed as intended.
International Surrogacy: What Australian Parents Need to Know — guides you through the complex issues when surrogacy crosses jurisdictional borders.
By reviewing these resources together, you will gain a more comprehensive understanding of how surrogacy fits into Australia’s legal framework, the interplay between state and national laws, and the practical implications for all parties involved.
Need Guidance with a Surrogacy Arrangement?
At Thornton + King, our specialists in family law can guide you through the surrogacy process — from preparing a compliant agreement to obtaining a parentage order. We’ll make the law simple, so that you can focus on building your family. Give us a call, or submit an enquiry now to speak to a specialist surrogacy lawyer.
