Surrogacy offers a pathway to parenthood for many families who cannot conceive or carry a pregnancy themselves. Yet in New South Wales, surrogacy is one of the most carefully regulated areas of family law. The process involves multiple steps — each designed to ensure that the arrangement is entered into freely, transparently, and in the best interests of the child.
Understanding how these steps fit together is essential. Even minor procedural errors can delay or prevent a parentage order from being made, leaving intended parents without legal recognition.
1. Before Conception: Meeting the Legal Requirements
The Surrogacy Act 2010 (NSW) sets out detailed pre-conception requirements. These are not optional; the court must be satisfied that they were followed before conception occurred.
To be eligible:
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) or a single person. At least one must reside in NSW.
The arrangement must be altruistic, meaning no payment or reward beyond reasonable expenses.
Before any medical procedure takes place, both parties must:
Receive independent legal advice from separate lawyers.
Undertake counselling with a qualified professional about the emotional and practical implications of surrogacy.
Obtain written certificates confirming these steps were completed.
Fertility clinics in NSW will not proceed with assisted reproductive treatment until these certificates are provided. The reason is simple — the Supreme Court cannot grant a parentage order later unless these requirements were satisfied beforehand.
2. The Surrogacy Agreement: Setting the Framework
A surrogacy agreement must be finalised before conception. It should be in writing, signed by all parties, and accompanied by certificates of legal advice and counselling.
While the agreement itself is not legally enforceable (neither party can be compelled to proceed if they change their mind), it is a mandatory requirement under the Surrogacy Act 2010 (NSW) and so it serves several important purposes:
It provides a record of the parties’ intentions.
It demonstrates that consent was informed and voluntary.
It establishes that the arrangement was made on an altruistic basis.
A well-drafted agreement will cover:
The roles and expectations of each party.
Arrangements for medical decisions and birth planning.
Reimbursement of reasonable expenses (medical costs, insurance, counselling, legal fees).
Dispute resolution and ongoing contact after birth.
In practice, the agreement acts as both an ethical and evidentiary safeguard — the court later relies on it as proof that everyone understood what they were entering into.
3. During Pregnancy: Maintaining Transparency and Records
Once conception occurs, the surrogate remains the legal mother of the child until a court order says otherwise. If she has a partner, that partner is presumed to be the other legal parent at birth.
Although the law does not impose formal obligations during pregnancy, best practice includes:
Maintaining open communication between the surrogate and intended parents.
Keeping accurate records of all reimbursed expenses.
Discussing hospital arrangements well in advance, including naming preferences and consent for medical decisions.
These practical steps help ensure that the post-birth process runs smoothly and that the court later sees the arrangement as well-managed and cooperative.
4. After Birth: Preparing for a Parentage Order
At birth, the surrogate is recorded on the child’s birth certificate as the legal mother. This remains the case until the Supreme Court of NSW makes a Parentage Order.
A Parentage Order formally transfers legal parenthood from the surrogate (and her partner, if any) to the intended parents. It can only be made if the court is satisfied that:
The arrangement was altruistic and made before conception.
Each party received independent legal advice and counselling.
The surrogate freely consents to the order, at least 30 days after the child’s birth.
The application is made within six months of the birth.
Making the order is in the best interests of the child.
The application must include:
Affidavits from all parties.
Certificates of legal advice and counselling.
The surrogacy agreement.
The child’s birth certificate.
Written consent from the surrogate.
If the application is late, the court has a limited discretion to extend time, but it will closely examine the reasons for delay.
5. The Supreme Court Process: What to Expect
Surrogacy applications are heard in the Equity Division of the Supreme Court of NSW. They are generally conducted in a private hearing to protect the privacy of the child and parties.
The court’s primary concern is the best interests of the child. It will assess whether:
The arrangement was genuine and pre-conception.
The surrogate fully understood the implications and consented freely.
The intended parents are capable of meeting the child’s needs.
There are no concerns about coercion, exploitation, or payment beyond permitted expenses.
The court also reviews all supporting evidence. In Application of RL (No 2) [2016] NSWSC 1611, for example, Justice Stevenson emphasised the importance of strict compliance with the Act — particularly regarding the timing of legal advice and counselling. The case shows that even well-intentioned parties must adhere closely to the statutory requirements.
Once satisfied, the court will make a Parentage Order directing the NSW Registry of Births, Deaths and Marriages to re-issue the birth certificate naming the intended parents as the legal parents of the child.
6. The Effect of a Parentage Order
When a Parentage Order is made:
The intended parents become the child’s legal parents for all purposes under Australian law.
The surrogate and her partner (if any) cease to have parental rights or responsibilities.
The new birth certificate replaces the original, and the intended parents can make decisions about the child’s upbringing, medical care, and future.
From that point forward, the child’s legal status is identical to that of any other child born to the intended parents.
7. After the Order: Post-Surrogacy Considerations
Many families choose to continue some form of relationship with the surrogate, particularly when there is mutual trust and respect. Courts and counsellors often encourage ongoing openness so that the child grows up understanding their origins.
It’s also a good time for intended parents to review their estate planning — updating wills and guardianship provisions to reflect their new legal responsibilities.
Although the legal process ends with the parentage order, the emotional journey continues. Counselling and family support can help everyone involved adjust to the transition.
8. The Role of a Surrogacy Lawyer
An experienced surrogacy lawyer plays a vital role at every stage of the process. This includes:
Advising on eligibility and compliance before conception.
Drafting or reviewing the surrogacy agreement.
Coordinating legal advice and counselling certificates.
Preparing and filing the Supreme Court application.
Representing clients at the hearing.
Because the law is technical and time-sensitive, obtaining legal advice early helps avoid the risk of non-compliance — which can otherwise be devastating for families.
Key Takeaways
Surrogacy in NSW is legal only if it is altruistic and complies strictly with the Surrogacy Act 2010 (NSW).
The surrogacy agreement must be made before conception and supported by independent legal advice and counselling.
A Parentage Order from the Supreme Court is essential to transfer legal parenthood.
Proper documentation and adherence to timelines are critical.
Surrogacy in NSW
Having navigated the legal process of surrogacy in New South Wales, it may also be helpful to explore our other related guides that cover key legal, practical and cross-jurisdictional aspects of surrogacy:
Reviewing these guides together will give you a more complete picture of how surrogacy works — not just the legal process in NSW, but the broader context of rights, responsibilities and cross-border challenges.
Need Advice About a Surrogacy Arrangement?
At Thornton + King, our specialists in family law can help you navigate the surrogacy process from start to finish — ensuring every legal requirement is met and your parentage order is granted smoothly. We’ll make the law simple, so you can focus on your family. To speak to a Law Society Accredited Specialist in family law, give us a call or submit an enquiry now.
