Grandparents’ Rights

For many people in Australia, the ‘traditional’ way to have a family is an impossible dream, and surrogacy offers an exciting option to attain the family you desire. However, having a surrogate carry and deliver a child on your behalf is a complex and emotional affair, and as such, there are extensive laws and regulations to control how surrogacy is conducted.

In practice, people in Australia can enter into surrogacy agreements with Australian citizens or with non-Australian surrogates. When a surrogate lives outside of Australia, this is what is referred to as international surrogacy.

There are two main types of surrogacies commercial and altruistic.

  1. Commercial surrogacy, is where the surrogate is paid compensation that is greater than the medical and legal expenses associated with the pregnancy.
  2. Altruistic surrogacy, whereby the surrogate does not receive any additional funds for her surrogacy, aside from covering legal and medical expenses involved with the pregnancy.

The laws in Australia governing surrogacy vary from state to state. However, there are fundamental principles that are common to all the states, including:

  1. Surrogacy is only allowed if the intended parents cannot naturally conceive and carry a baby to term.
  2. The surrogacy must be an altruistic surrogacy and NOT commercial.
  3. Therefore, the intended parents should bear the medical and legal costs associated with the surrogacy and
  4. Everyone involved must receive counselling and legal advice.

The surrogate (and her partner if she has one) is listed as the parent on the birth certificate. The intended parents can apply for a change of these names through a Parentage Order.

In cases where the surrogacy is outside Australia, the parents should know that some countries have completely banned international surrogacies, while some countries only allow altruistic and not commercial surrogacies. In some Australian states, it is illegal for a resident to make an international commercial surrogacy agreement.

Furthermore, a child born under an international surrogacy agreement does not automatically become an Australian citizen. A parent to such a child must apply for citizenship by descent on behalf of the child.

The laws affecting surrogacy in Australia and internationally are continuously changing and evolving. It is essential that you conduct your research and retain a competent solicitor to ensure that the surrogacy is legal and valid.