Can I pay a surrogate to have my baby?
There is no state or territory in Australia that allows parties to enter a commercial surrogacy arrangement.
A commercial surrogacy arrangement is one where the surrogate mother receives money or any other form of inducement to:
- agree to enter a surrogacy arrangement;
- permanently relinquish a child born from a surrogacy arrangement; or
- consent to the making of a parentage order for a child born from a surrogacy arrangement.
In Queensland, it is illegal to procure a commercial surrogacy arrangement with the penalty being up to three years' imprisonment.
Altruistic surrogacy is the only legal way for parties to engage in surrogacy arrangements in Australia.
Altruistic surrogacy involves a surrogate mother agreeing to carry a child for the intending parents without receiving payment other than expenses authorised under the surrogacy legislation. In Queensland, authorised payments include the birth mother's medical costs, counselling costs, premiums payable for health insurance, legal costs of the surrogacy arrangement and loss of earnings while pregnant.
How do I find a surrogate?
It is illegal to advertise for a surrogate, or advertise a willingness to be a surrogate, in Queensland.
Where intending parents cannot advertise for a surrogate, nor pay a surrogate to carry their child, they generally turn to their family and friends to find a willing surrogate.
What are the requirements for legal surrogacy in Australia?
The requirements for a legal surrogacy in Australia differ between states and territories. In Queensland:
- the surrogacy must be altruistic
- the intending parent may be single, married or in a de facto relationship
- the intending parents may be of the same sex
- the surrogate mother and intended parents must all be over 25 years old
- if there is an intending female parent, she must be infertile or have a medical condition preventing her from having a child.
What is a surrogacy agreement?
A surrogacy agreement is a written contract between the intending parents and birth mother and her spouse (if she has one).
Before signing the agreement, the birth parent and her spouse and the intending parents must receive counselling and independent legal advice.
The agreement is not enforceable except for the payment of the birth mother's surrogacy costs.
The intending parents have no recourse against the birth mother if she refuses to relinquish the child to them once born. Similarly, the birth mother has no recourse against the intending parents if they refuse to accept the child after birth.
How do I legally become a parent after my child is born to the surrogate?
In Queensland, a child born to a surrogate is legally a child of the surrogate mother and her spouse (if she has one), whether or not that child has any genetic link to the surrogate.
Intending parents and the surrogate mother can apply to the Supreme Court of Queensland for a parentage order; that is, an order that transfers the parentage from the surrogate to the intending parents.
There are legal requirements to obtain a parentage order, including:
- the surrogacy was altruistic
- there is a surrogacy agreement that was made after the birth mother and intending parents obtained independent legal advice and counselling
- the surrogacy agreement was made before the child was conceived
- the birth parents have registered the baby's birth
- there is a surrogacy guidance report from a qualified counsellor (who didn't previously give counselling to the parties)
- before filing proceedings in court, the baby lived with the intending parents for at least 28 days and is living with them at the time of the court hearing
- the parties have applied to the court while the child is between 28 days to 6 months old, or a later time with the court's leave.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.