Most surrogacy arrangements in Australia proceed smoothly, built on mutual respect and shared purpose. The process is designed to be collaborative and carefully regulated so that everyone — the surrogate, the intended parents, and most importantly, the child — is protected.
But despite the best of intentions, surrogacy arrangements can sometimes unravel. Emotions can change, relationships can strain, and unexpected circumstances may test the agreement. When this happens, understanding how the law responds becomes critical.
Why Surrogacy Arrangements Break Down
Surrogacy involves complex emotional, ethical, and legal considerations. Even with thorough preparation, disputes can arise. Common causes include:
Emotional strain during pregnancy. Surrogacy is physically and emotionally demanding, and stress can alter perceptions or expectations.
Disagreements about expenses or decision-making. Questions about what constitutes “reasonable reimbursement” or differing views on medical procedures can cause tension.
A change of heart after birth. The surrogate may feel a deep attachment to the baby, or the intended parents’ circumstances may change unexpectedly.
Breakdown of communication. Misunderstandings or lack of contact can lead to mistrust.
These scenarios are uncommon, but when they occur, the law provides mechanisms for resolving them — always with the child’s best interests as the paramount consideration.
Legal Status Before a Parentage Order
Before the Supreme Court grants a Parentage Order, the surrogate remains the child’s legal mother, even if she has no genetic connection to the child. If she has a partner, that person is presumed to be the other legal parent under the Status of Children Act 1996 (NSW).
This means the intended parents do not yet have automatic parental rights or responsibilities. They may be caring for the baby day-to-day, but their legal status is not confirmed until the court makes an order.
If a disagreement arises before the Parentage Order is made — for example, if the surrogate refuses to consent, or if the intended parents no longer wish to proceed — the dispute must be addressed under the Family Law Act 1975 (Cth). The Family Court or Federal Circuit and Family Court can make parenting orders based on the child’s best interests, but it cannot override the surrogate’s legal parentage without the proper process.
If the Surrogate Changes Her Mind
The law is clear that a surrogate cannot be forced to hand over the child.
Surrogacy agreements in Australia are not enforceable when it comes to the transfer of parentage or custody. They record intentions, but they do not create binding rights to the child.
If the surrogate decides after birth that she does not want to consent to the Parentage Order or relinquish care, the intended parents may apply for parenting orders under the Family Law Act. These orders determine where the child lives and who has parental responsibility.
When deciding such cases, the court considers:
The prior intentions of the parties and the surrogacy arrangement.
The nature of the child’s existing relationships and attachments.
Each party’s capacity to provide stable care.
The child’s emotional and physical wellbeing.
The fact that the intended parents may be the child’s biological parents does not guarantee that they will be given legal custody. The overriding principle remains the best interests of the child, taking into account their immediate needs and long-term stability.
If the Intended Parents Change Their Mind
Although rare, there are cases where intended parents withdraw from the arrangement — sometimes because of relationship breakdown, financial hardship, or discovering the child has a medical condition.
In such circumstances, the surrogate cannot be compelled to raise the child indefinitely. The Family Law Act allows the surrogate to apply for parenting orders, which may include full parental responsibility or the appointment of another suitable caregiver.
The court will consider:
Who is currently caring for the child.
Whether the intended parents have participated in the child’s life.
The child’s medical and emotional needs.
The financial and practical capacity of each party to provide care.
If the intended parents are the child’s biological parents, they may still be required to contribute to the child’s financial support, even if they do not assume day-to-day care.
Disputes About Expenses or Financial Issues
Another area of potential conflict involves reimbursement of expenses.
The Surrogacy Act 2010 (NSW) prohibits commercial surrogacy, allowing only reimbursement for reasonable out-of-pocket costs. Disagreements may arise about what is “reasonable” — particularly regarding lost income, travel, or medical costs.
If a dispute arises, it can often be resolved through:
Mediation or negotiation, facilitated by lawyers or counsellors familiar with surrogacy law.
In rare cases, civil proceedings to recover unpaid or disputed expenses.
The Supreme Court may also scrutinise payments when considering a parentage order. Any sign that the arrangement was commercial can prevent the order from being granted, so transparency and record-keeping are essential.
The Role of Counselling and Mediation
Counselling is a cornerstone of the surrogacy process — not just a legal requirement, but a safeguard for emotional wellbeing.
When conflict emerges, mediation and counselling are often the most effective ways to restore trust or reach practical solutions. Independent counsellors experienced in surrogacy can help parties communicate openly, clarify expectations, and focus on the child’s welfare.
The courts expect parties to attempt resolution through counselling or mediation before resorting to litigation. This approach often preserves relationships and avoids the stress and cost of formal proceedings.
Court Intervention and Decision-Making Principles
If a dispute cannot be resolved, the courts may need to intervene. The type of court and the process depend on the issue:
Parentage disputes are determined by the Supreme Court under the Surrogacy Act 2010 (NSW).
Parenting or custody disputes are determined by the Family Court or Federal Circuit and Family Court under the Family Law Act 1975 (Cth).
In all cases, the guiding principle is the best interests of the child.
When determining what that means, courts consider:
The child’s safety, stability, and emotional bonds.
The likely effect of changing the child’s living arrangements.
Each party’s willingness to support the child’s relationship with the other.
The prior intentions expressed in the surrogacy agreement.
Courts are cautious about disrupting established attachments, especially for newborns or infants. Where a child has been living with one party since birth, continuity and stability often carry significant weight.
Impact on the Parentage Order Process
Conflict can delay or even prevent the making of a Parentage Order.
The Supreme Court will not make an order unless it is satisfied that the surrogate freely consents. If she has doubts, feels pressured, or refuses consent, the court cannot proceed.
In such cases, the matter may shift to the Family Court, where broader parenting orders can be made to determine who the child lives with and spends time with — but those orders will not alter legal parentage.
This reinforces why surrogacy arrangements must be based on trust, clear communication, and full understanding from the outset.
Preventing a Breakdown: Preparation and Transparency
The best way to avoid conflict is through careful preparation before conception.
Key safeguards include:
Obtaining independent legal advice early and ensuring both parties understand their rights and obligations.
Completing mandatory counselling to discuss potential challenges and emotional boundaries.
Preparing a clear written surrogacy agreement that outlines expectations about medical decisions, expenses, and post-birth contact.
Maintaining open communication throughout the process.
These steps help align expectations and create a framework for resolving issues before they escalate.
Key Takeaways
The surrogate remains the legal mother until a Parentage Order is made.
If a dispute arises, courts decide based on the best interests of the child, not biology or intention alone.
Surrogacy agreements cannot compel either party to proceed if they change their mind.
Counselling and mediation are vital tools for managing conflict.
Early, thorough legal advice and documentation reduce the risk of breakdowns.
Surrogacy in NSW
Navigating a breakdown in a surrogacy arrangement is challenging and can raise complex legal, ethical and practical questions. To assist you further, you may also wish to consult our related guides that explore interconnected aspects of surrogacy in Australia:
Surrogacy in Australia — a comprehensive national overview of how surrogacy arrangements are regulated.
The Legal Process of Surrogacy in NSW — outlines the procedural and legal steps required under NSW law.
Altruistic vs Commercial Surrogacy: What’s Legal in Australia — explains which types of surrogacy are permitted and which are prohibited in Australia.
Who Are the Legal Parents in a Surrogacy Arrangement — clarifies how parentage is determined and transferred after the birth of a child.
How Courts Decide Parentage Orders in NSW Surrogacy Cases — reviews the legal tests, documentation and court considerations for parentage orders in NSW.
International Surrogacy: What Australian Parents Need to Know — covers cross-border issues, recognition of parentage and immigration implications in overseas surrogacy arrangements.
Taken together, these resources provide a broad and detailed perspective on surrogacy — from entering the arrangement, to legal recognition, and handling complications or breakdowns when they occur.
Need Help with a Surrogacy Dispute or Advice Before You Begin?
At Thornton + King, our specialists in family law understand the legal and emotional complexities of surrogacy. Whether you’re preparing an arrangement or facing unexpected difficulties, we can guide you through your options with care and clarity.
We’ll make the law simple, so you can focus on what matters most — the wellbeing of your family. To speak to a specialist surrogacy dispute lawyer, give us a call or submit an enquiry now.
