Surrogacy

Introduction

Surrogacy is the practice in which a woman agrees to become pregnant with the intention of permanently surrendering the child born of that pregnancy to another person or couple, with the intent that the person or couple will parent the child. 1

The woman who bears the child is the surrogate’ or ‘birth mother’.

The person or persons to whom the child is intended to be surrendered, are referred to as ‘commissioning’ or ‘intended’ parent(s)/person(s).

Depending on the law where the surrogacy arrangement takes place, commissioning person(s) may include:

  • heterosexual women who do not wish to carry a child by choice, or who are unable to carry a child due to a range of factors (for example, infertility; hysterectomy; disease (such as cancer); absent or poorly functioning ovaries or uterus; recurrent pregnancy loss; repeated failures using other forms of assisted reproduction; age);
  • single women or lesbian couples who can not or do not wish to use artificial insemination or other forms of assisted reproduction to become pregnant, or do not wish to carry a pregnancy;
  • single or same-sex partnered men.

In addition to the surrogate mother and commissioning person(s), there may be numerous other people involved in (or affected by) such arrangements. For example, the surrogate mother’s partner, donors of ova and/or sperm and their partners, and any children already in existence related to the surrogate, the donor(s), the commissioning person(s), and/or their partners. There may also be the involvement of agents, intermediaries, lawyers, clinicians and other associated staff.

Surrogacy raises many complex ethical, social and legal issues. These issues are discussed on the page on ethical and legal issues. An overview of how the states and territories in Australia regulate surrogacy, as well as approaches taken around the world, is also found on that page. Links in the menu at the right of this page lead to sections that provide further details on laws in each of the states and territories of Australia, and beyond.

Immediately below, you will find some key  terms concerning surrogacy defined (including defining ‘traditional’, ‘gestational’, ‘altruistic’ and ‘commercial’ surrogacy arrangements).

Some Key Terms

‘Traditional Surrogacy’

A surrogate mother may carry a child that is genetically related to her, conceived by sexual intercourse, self-insemination, or by medically supervised artificial insemination. In such circumstances, the egg of the woman is fertilised with the sperm of a commissioning male, or with donor sperm, or with the sperm of her partner.

This is often referred to as ‘partial’ or ‘traditional surrogacy’. 

‘Gestational Surrogacy’

In other arrangements, the surrogate mother is not ‘genetically’ related to the child she carries. The child may be conceived using assisted reproduction, using

  • the eggs and sperm of a commissioning heterosexual couple (a man and a woman);
  • eggs from a donor, and the sperm of a commissioning male (be he in a heterosexual or same-sex partnership or not);
  • eggs from a donor, and sperm from a donor.

Such surrogacy arrangements are often referred to as ‘gestational’ or ‘full’ surrogacy.

NOTE: Gestational arrangements do not mean that the surrogate mother has no connection to the child, or it to her. There are many biological processes that occur before, during and after pregnancy, that may affect mother and child. 2

Altruistic Surrogacy

‘Altruistic’ surrogacy refers to an arrangement in which the surrogate receives no financial benefit or reward.

Altruistic surrogacy arrangements may be seen to include such arrangements in which the surrogate is reimbursed for losses and expenses associated with the pregnancy.

Where reimbursement of loss and expenses is permitted, the law may take a number of forms. It may:

  • not define what losses or expenses are recoverable;
  • define or limit the types of losses or expenses that may be paid (for example, private health insurance; lost earnings up to a certain limit; reasonable legal expenses; maternity wear; etc);
  • make enforceable payment of losses and expenses whether or not the surrogate mother relinquishes the child.

Genuine altruistic arrangements most often occur between family members (for example a sister, a mother, a cousin or an aunt carries a pregnancy and bears a child with the intention of relinquishing it to their sister, daughter, cousin, niece, and so on); or between close friends. Sometimes however, they may occur between people who do not know each other.

Commercial Surrogacy

Commercial surrogacy
Commercial surrogacy involves a surrogacy arrangement in which the surrogate mother receives some kind of financial benefit, reward, or profit. A commercial arrangement is any arrangement in which more than reasonable expenses are reimbursed. The payment or reward may be small, or large – if it results in gain or benefit, it is considered a commercial arrangement.

Commercial surrogacy is more likely to be arranged by agents, intermediaries, clinics, lawyers – who also stand to profit.

Commercial arrangements cause the greatest controversy and concern, particularly in relation to risks of exploitation, commodification, and trafficking of women and children. There is also often concern about significant financial, racial, social and/or class disparities between commissioning person(s) and surrogate mothers, in both developed and developing nations.

Note: Whether or not individual arrangements reflect all of these concerns, the broad spectrum of risks raised by, or seen in commercial surrogacy arrangements, has meant that it is prohibited by many nations.

Find out more

You may find more detailed summaries of laws by following the links at the side of the page, or clicking on title or the state or territory below that you are interested in:

Ethical, Social and Legal Issues (and how the law in Australia and around the globe has answered such issues)

ACT

Northern Territory

NSW

South Australia

Tasmania

Victoria

Western Australia

Queensland

Pregnant woman on window sill

Notes:

  1. Note surrogacy does not rely upon pregnancy after the agreement, a woman may already be pregnant and agree to surrender a child, however most often people distinguish between surrogacy and adoption by emphasising that in the former, the child is conceived after the arrangement is made.
  2. See for example, Robert Martone, ‘Scientists Discover Children’s Cells Living in Mother’s Brains: The Connection between Mother and Child is Even Deeper than Thought’, Scientific American (4 December 2012).