Surrogacy: New South Wales

Guiding Principle

The best interests of the child of the surrogacy arrangement are paramount.

Legality: What kinds of arrangements are legal?

Altruistic Surrogacy

Altruistic surrogacy arrangements are legal. 1

‘Reasonable costs’ may be associated with

(a) becoming or trying to become pregnant,
(b)  a pregnancy or a birth, and/or
(c)  entering into and giving effect to a surrogacy arrangement. 2

They may include costs associated with the surrogate mother’s medical treatment, travel or accommodation; health, disability or life insurance that would not have been obtained otherwise; loss of earnings as a result of unpaid leave; entering into the agreement; and/or costs associated with the surrogate mother and her partner (if any) undergoing counselling; receiving legal advice; and being a party to proceedings in relation to parentage orders (including reasonable travel and accommodation costs). 3

Commercial Surrogacy

Commercial surrogacy agreements that involve the provision of a fee, reward or other material benefit or advantage to a person in relation to entering into a surrogacy agreement, giving up a child, or consenting to the making of parenting orders are prohibited and subject to significant fines and/or up to two years in prison. 4

It is also prohibited to travel to another jurisdiction (for example overseas) to engage in commercial surrogacy arrangements, because the law has extraterritorial effect. 5

Who may enter into a surrogacy arrangement?

The intended parent must be a single person, or a member of a couple (being a person and their spouse or defacto partner). 6

Gestational or Traditional Surrogacy?

Gestational or traditional surrogacy may occur in NSW.

What criteria do the commissioning person(s) need to meet?

People entering surrogacy arrangements must meet a list of criteria in order for a parentage order to be made. 7

Note: There is an overarching principle that the best interests of the child are paramount.

Criteria regarding the ‘intended parent(s)’ include that:

  • the arrangement must have been made prior to the surrogate conceiving a child;
  • the intended parent must be a single person or a member of a couple (where both must apply);
  • the intended parent(s) must be over the age of 25 years (or the maturity of a younger intended parent has to have been established via counselling);
  • the applicant(s) must demonstrate a medical or social need for a surrogacy arrangement;
  • each of the parties must have received counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications before entering into the arrangement;
  • each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the arrangement;
  • the applicant(s) must be resident in NSW.

The surrogacy arrangement must be in writing.

What criteria does the birth mother need to meet?

Principles regarding the best interests of the child, timing of agreement, and that counselling and independent legal advice must be obtained prior to the agreement, also apply to the birth mother and her partner if any.

In addition, the birth mother must be over the age of 25 years;

The birth mother and the birth mother’s partner (if any) must also have received further counselling from a qualified counsellor about the surrogacy arrangement and its social and psychological implications after the birth of the child and before consenting to the parentage order.

The legal advice obtained by the birth mother and the birth mother’s partner (if any) must have been obtained from an Australian legal practitioner who is independent of the Australian legal practitioner who provided legal advice about the surrogacy arrangement to the applicant or applicants.

Is advertising legal?

Advertising is prohibited unless it is in relation to an altruistic arrangement, and no fee has been paid.

(Other advertising – for example for commercial surrogacy, or where a fee has been paid – is subject to significant fines and imprisonment for up to 2 years). 8

Can agents or intermediaries or other people be involved?

The legislation does not prohibit such involvement.

Enforceability: Can the parties change their mind?

A surrogacy arrangement is not enforceable. 9 This means a birth mother can change her mind, and will not be required to relinquish the child. The intended parents may also change their minds.

Nevertheless, an obligation under a surrogacy arrangement to pay or reimburse the birth mother’s surrogacy costs is enforceable, provided the arrangement is a pre-conception surrogacy arrangement. 10

Parenting Orders?

In addition to having met the criteria stated above, applications for parenting orders cannot be made until 30 days after the birth of the child, and may be made up to 6 months after the birth. The birth of the child must have been registered, and the child must be living with the applicant(s).

Access to Information for Children?

Information concerning a child born as a result of a surrogacy arrangement, and the donors of gametes and/or birth parents must be entered on the Central Register of information maintained in New South Wales. 11

Notes:

  1. Surrogacy Act 2010 (NSW) s 6(1).
  2. Section 7.
  3. Section 7.
  4. Section 8.
  5. Section 11.
  6. Section 25.
  7. Sections 18, 21-38.
  8. Section 10.
  9. Section 6.
  10. Section 6(2).
  11. Surrogacy Act 2010 (NSW), s 37; Assisted Reproductive Technology Act 2007 (NSW), s 41B; Assisted Reproductive Technology Regulation (NSW), Cl 17A.