Factsheet: Surrogacy

Summary

This factsheet contains information about:

  • surrogacy laws in Victoria
  • altruistic ​surrogacy
  • commercial surrogacy
  • rights of donor-conceived children
pregnant woman holding her belly

This information relates to laws in Victoria, Australia.

Increasingly, Australian couples who are unable to have their own children for medical or social reasons are turning to surrogacy as an alternative way to start a family. This includes same-sex couples. This factsheet introduces the law around surrogacy in Victoria and includes useful contacts and information resources.

Surrogacy occurs when a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (‘the intended parents’). When the child is born, he/she is taken into the care of the intended parent or parents who will raise the child.

Usually one or both of the intended parents provides the DNA for the child.

Surrogacy laws in Victoria

Where the surrogate provides her own ovum (egg cell) and undergoes donor insemination, this is referred to as traditional surrogacy. IVF clinics in Australia are not permitted to provide a traditional surrogacy, but it can be achieved with a home insemination procedure. This type of surrogacy arrangement raises particularly complex legal and ethical issues.

In Victoria, a Patient Review Panel hears applications for couples to access assisted reproductive treatment through an IVF clinic. The Panel can’t approve a surrogacy arrangement where the surrogate's ovum is used. This is set out in the Assisted Reproductive Treatment Act 2008 (Cth).

Where the intended parents provide any of the DNA for the child, or they get the sperm or ovum from a third person, and the embryo is then implanted in the surrogate mother, this is referred to as gestational surrogacy.

Altruistic surrogacy

Altruistic surrogacy is where the surrogate is not paid a fee or reward apart from getting back the costs of the surrogacy arrangement, including the pregnancy. These costs are approved in legislation and are different in other states and territories.

Each state and territory, except the Northern Territory, has legislation dealing with altruistic surrogacy. Altruistic surrogacy arrangements are legal, but they are not enforceable.

What if the surrogate mother refuses to hand over the child?

If the surrogate in an altruistic surrogacy arrangement refuses to hand the child over to the intended parents after birth, she cannot be compelled to do so. The only remedy for the intended parents is to apply to the Family Court for a parenting order that the child live with them. This occurred in Queensland in the case Re Evelyn. In that case, the surrogate in a traditional surrogacy arrangement took back the child after surrendering her to the intended parents, and eventually the Family Court granted the surrogate a residence order.

Keep in mind that a surrogate is considered a parent of the child. If she was in a marriage or de facto relationship at the time of conception and her partner consented to the procedure, the partner is also considered to be a parent of the child. This is set out in section 60H of the Family Law Act 1975.

Parentage order

State and territory legislation, except in the Northern Territory, provides the mechanism to obtain a ‘parentage order’. This is an order made by the state courts to take the status of parent from the surrogate and her partner and transfer it to the intended parents. In Victoria, applications are made to the County Court. The requirements are different in other states.

After a parentage order is obtained, a copy is provided to the Registrar of Births, Deaths and Marriages and a fresh birth certificate is issued. The new certificate names the intended parents as the parents of the child.

Commercial surrogacy

Commercial surrogacy arrangements within Australia are illegal and punishable by imprisonment.

It is illegal for residents of Queensland, New South Wales and the Australian Capital Territory to agree to overseas commercial surrogacy arrangements. This is not illegal for residents of Victoria, Tasmania, South Australia, Western Australia or the Northern Territory.

Parenting orders in commercial surrogacy arrangement

People who have made a commercial or overseas surrogacy arrangement cannot get a parentage order under the state surrogacy legislation.

Under Commonwealth law the surrogate mother will be treated as a parent of a child born in a commercial surrogacy arrangement. If the surrogate mother was in a married or de facto relationship at the time of conception and her partner agreed to the procedure, her partner will also be treated by the law as a parent of the child. This is set out in section 60H of the Family Law Act.

A case that sets out the Family Court’s requirements for parenting orders where there has been a commercial surrogacy arrangement is Ellison & Anor and Karnchanit. For intended parents in this situation, the best solution is to apply to the Family Court for a parenting order giving them parental responsibility. The Federal Circuit Court does not normally deal with surrogacy arrangements.

Obtaining a parenting order does not make the intended parents the legal parents of the child, but it permits them to function as parents and exercise parental responsibility.

Commercial surrogacy and wills

Intended parents in commercial surrogacy arrangements should immediately make new wills that include the child or children born from a commercial surrogacy arrangement. Unless there is a will, the child may be left without support or entitlement under intestacy laws as, strictly, that child is not their child.

Commercial surrogacy and sperm donors

If the surrogate was single, the intended parent who provided the sperm donation may ask the Court for a declaration of parentage. When looking at the meaning of the word ‘parent’, the sperm donor may use the dictionary meaning to argue that he provided the sperm donation with the intention that he would parent the child (see Groth & Banks).

Before you enter a surrogacy arrangement

As laws on surrogacy vary between states and internationally, anyone who is thinking about making an altruistic or commercial surrogacy arrangement should get independent legal advice first. This is very strongly recommended. If considering overseas surrogacy arrangements, you should get migration law advice as well as family law advice.

The child’s rights

From 1 March 2017 all people who are donor-conceived in Victoria at any time in the past, or in the future, have the right to receive identifying information about their donor.

The Victorian Assisted Reproductive Treatment Authority (VARTA) manages the registers and provides support for donors, people who are donor-conceived, parents who have used a donor, and their families.

Contacts and further information

Family Court of Australia

Tel: 1300 352 000
Web: www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home/

Federal Circuit Court of Australia

Tel: 1300 352 000
Web: www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home/

Federation of Community Legal Centres

(for referral to your nearest community legal centre)
Tel: 9652 1500
Web: www.communitylaw.org.au

IVF Australia

Tel: 1800 111 483
Web: www.ivf.com.au

LGTIQ Legal Advice Clinic

Fitzroy Legal Service
​Fitzroy Town Hall, level 4
126 Moor Street, Fitzroy (access via the laneway and courtyard)
Held on the first Thursday of each month, by appointment only, family law matters only.
124 Johnston Street, Fitzroy Vic 3065
Appointments: (03) 9419 3744
Web: www.fitzroy-legal.org.au

Rainbow Families

PO Box 303, Preston Vic 3073
Web: www.rainbowfamilies.org.au
Email: info@rainbowfamilies.org.au

Registry of Births, Deaths and Marriages

Ground Floor, 595 Collins Street
Melbourne Vic 3000
Tel: 1300 369 367
Web: www.bdm.vic.gov.au

Victorian Gay & Lesbian Rights Lobby

PO Box 21305
Little Lonsdale Street, Victoria 8011
Tel: 0417 484 438
Web: www.vglrl.org.au

Victorian Assisted Reproductive Treatment Authority (VARTA)

Level 30, 570 Bourke Street
Melbourne 3000
Tel: 8601 5250
Web: www.varta.org.au

Acknowledgments

This factsheet was based on an earlier Law Handbook factsheet.

Victoria Law Foundation acknowledges the assistance of Jacky Campbell, partner and accredited family law specialist at Forte Family Lawyers.

This page was last updated on May 30, 2017

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