When a child is born through surrogacy, it might seem natural to assume that the intended parents — particularly if they are the child’s biological parents — are the legal parents from birth.
In Australia, however, the law says otherwise.
Until a court formally transfers parentage, the surrogate (the birth mother) is recognised as the legal mother of the child. This position reflects long-standing legal principles and forms the foundation of how surrogacy is regulated under Australian law.
Understanding who is recognised as a child’s legal parent — and when that changes — is one of the most important aspects of the surrogacy process.
Parentage at Birth: The Default Position
Under Australian law, the woman who gives birth to a child is presumed to be the child’s legal mother, regardless of whether she has a genetic connection to the child.
In New South Wales, this principle is set out in both the Status of Children Act 1996 (NSW) and the Surrogacy Act 2010 (NSW). If the surrogate has a spouse or de facto partner, that person is also presumed to be the child’s legal parent at birth — unless it can be shown that they did not consent to the surrogacy arrangement.
This means that:
The surrogate’s name is recorded on the initial birth certificate.
The intended parents have no automatic legal rights to make decisions for the child.
Parental responsibility — including for medical care, citizenship, and travel — initially rests with the surrogate.
For intended parents, this can be surprising and sometimes confronting. But the law’s structure is deliberate: it protects the surrogate’s autonomy and ensures parentage is only transferred after all legal safeguards have been satisfied.
Why the Law Works This Way
Historically, Australian family law has followed the principle that the woman who gives birth is the legal mother. This rule reflects both biological certainty and the ethical importance of consent.
In the context of surrogacy, the law aims to avoid situations where a woman might be compelled to relinquish a child without fully informed consent. By making the surrogate the legal mother at birth, the law ensures that she retains control until a court is satisfied that transferring parentage is appropriate and voluntary.
This approach is also consistent with international conventions protecting the rights of women and children. It provides time for all parties to receive post-birth counselling and for the court to confirm that the arrangement remains in the child’s best interests.
How Legal Parenthood Is Transferred
The transfer of parentage in New South Wales occurs through a Parentage Order made by the Supreme Court of NSW under the Surrogacy Act 2010 (NSW).
A Parentage Order permanently transfers legal parentage from the surrogate (and her partner, if applicable) to the intended parents. It can only be made if specific conditions are met:
The surrogacy arrangement was altruistic (not commercial).
The agreement was made before conception.
Both the surrogate and intended parents received independent legal advice and counselling.
The surrogate freely consents to the order at least 30 days after the birth.
The application is made within six months of the child’s birth.
The court is satisfied that making the order is in the best interests of the child.
The application must include supporting documents — including the surrogacy agreement, legal advice certificates, counselling reports, and affidavits from all parties.
Only when the court is satisfied that every legal requirement has been met will it make the Parentage Order transferring legal parenthood to the intended parents.
What a Parentage Order Does
Once a Parentage Order is granted:
The intended parents become the legal parents for all purposes under Australian law.
The surrogate and her partner cease to have parental rights or responsibilities.
The NSW Registry of Births, Deaths and Marriages issues a new birth certificate naming the intended parents as the child’s parents.
The order has the same legal effect as if the intended parents had given birth to the child themselves. It gives them full parental responsibility and all associated legal rights — including decision-making authority, inheritance, and citizenship entitlements.
If a Parentage Order Is Not Granted
If the court declines to make a Parentage Order, the surrogate remains the child’s legal mother. This might occur where:
The arrangement was entered into after conception.
The parties did not obtain proper legal advice or counselling.
There was payment beyond reasonable expenses.
The surrogate withdraws her consent.
In such cases, the intended parents can apply for parenting orders under the Family Law Act 1975 (Cth).
Parenting orders allow the intended parents to make day-to-day decisions and care for the child, but they do not change the child’s legal parentage. The surrogate would still be the legal mother for purposes such as birth registration, inheritance, and citizenship.
This outcome can create uncertainty and emotional distress, which is why strict compliance with the Surrogacy Act 2010 (NSW) and early legal advice are critical.
Parentage in International Surrogacy
When surrogacy takes place overseas, the issue of legal parentage becomes more complicated.
Even if a child’s birth certificate issued overseas lists the intended parents, Australian law does not automatically recognise them as the legal parents. Parentage is determined according to the law of the place where recognition is sought — in this case, Australia.
Intended parents may still need to:
Apply to the Australian courts for a Parentage Order (if permitted) or for parenting orders under the Family Law Act.
Prove the child’s citizenship or residency status before entering Australia.
Australian courts have dealt with several complex international cases, including Ellison & Karnchanit [2012] FamCA 602, where the Family Court had to address both parentage and citizenship arising from a commercial surrogacy arrangement in Thailand.
These cases highlight that while overseas surrogacy may appear straightforward, recognition under Australian law is not automatic and must comply with domestic legislation.
The Interaction Between State and Federal Law
State and federal laws work together to create a complete legal framework for parentage.
The Surrogacy Act 2010 (NSW) governs the process of transferring parentage.
Once a Parentage Order is made, the Family Law Act 1975 (Cth) recognises the intended parents as the child’s legal parents nationwide.
This ensures that the order has effect for all purposes — including parenting arrangements, child support, and inheritance rights — across every Australian jurisdiction.
Ethical and Emotional Dimensions
Behind every surrogacy arrangement is a deeply personal story. The legal framework is designed not just to regulate, but to protect — ensuring that the process respects the surrogate’s autonomy, the intended parents’ hopes, and the child’s welfare.
Counselling plays a crucial role here. Both before and after birth, it helps all parties understand the emotional implications of transferring parentage and supports the long-term wellbeing of everyone involved.
It’s also increasingly common for families to maintain open communication with the surrogate after the parentage order is made, helping the child understand their origins in a healthy and positive way.
The Role of a Surrogacy Lawyer
A family lawyer experienced in surrogacy matters ensures that:
All pre-conception requirements are properly completed.
The surrogacy agreement is compliant and correctly documented.
Evidence for the parentage order is prepared and filed correctly.
The court process proceeds smoothly and within the required timeframe.
Early legal involvement also helps avoid disputes about consent, expenses, or the validity of the arrangement — all of which can affect whether the court grants the parentage order.
Key Takeaways
The surrogate is the legal mother at birth, regardless of genetics.
Legal parentage transfers only when the Supreme Court of NSW grants a Parentage Order.
The order extinguishes the surrogate’s rights and makes the intended parents the child’s legal parents.
If a parentage order is refused, parenting orders may be available but do not alter legal parentage.
International surrogacy introduces further complexity — overseas birth certificates are not automatically recognised in Australia.
Surrogacy in NSW
Having clarified how legal parentage is established in a surrogacy arrangement, you may also find it helpful to review our related guides that explore further legal, practical and jurisdictional dimensions of surrogacy:
Surrogacy in Australia — a national overview of the legal framework for surrogacy across Australia.
The Legal Process of Surrogacy in NSW — a detailed walkthrough of the steps, eligibility criteria and documentation under NSW law.
Altruistic vs Commercial Surrogacy: What’s Legal in Australia — compares the types of surrogacy arrangements and what is permitted under Australian legislation.
How Courts Decide Parentage Orders in NSW Surrogacy Cases — examines the legal tests, timing and process for applying for a parentage order in NSW.
What Happens If a Surrogacy Arrangement Breaks Down — discusses risks, legal consequences and options when arrangements do not go as planned.
International Surrogacy: What Australian Parents Need to Know — covers cross-border surrogacy issues including recognition of parentage, immigration and compliance.
Taking in these resources together will help you build a comprehensive picture of how legal parentage fits into the broader surrogacy journey — from legislation and agreements, through to applications and practical outcomes.
Need Advice About Surrogacy and Parentage?
At Thornton + King, our specialist family lawyers can help you navigate every step of the surrogacy process — from preparing your agreement to obtaining a parentage order and updating your child’s legal records. We’ll make the law simple, so you can focus on building your family. To speak to a specialist in surrogacy law, give us a call or submit an enquiry now.
