Establishing a surrogacy arrangement
Australian surrogacy law is state-based. All jurisdictions prohibit commercial surrogacy and impose criminal penalties for entering into or facilitating commercial arrangements. Altruistic surrogacy is permitted subject to strict requirements including independent legal advice, counselling, and (in most states) prior court approval or post-birth parentage orders.
This is an 8-step workflow for establishing a lawful altruistic surrogacy arrangement in Australia. Commercial surrogacy is prohibited in all Australian states and territories. Altruistic surrogacy is permitted but heavily regulated — each state has different legislation governing the arrangement, the counselling requirements, and the process for transferring legal parentage.
Before you start
- Identification of the intended parents and the surrogate mother (and her partner, if applicable)
- Confirmation that the arrangement is altruistic (no payment beyond reasonable expenses)
- Medical assessment and fertility treatment plan
- Jurisdictional assessment of the applicable state surrogacy legislation
The workflow
Confirm the applicable state legislation
Identify which state's surrogacy legislation applies based on where the surrogate resides. Key statutes include the Surrogacy Act 2010 (NSW), Surrogacy Act 2010 (Qld), Assisted Reproductive Treatment Act 2008 (Vic), and Surrogacy Act 2008 (WA). Each has different eligibility criteria.
Ensure eligibility requirements are met
Verify that the intended parents and surrogate meet the eligibility criteria under the applicable Act. Common requirements include: the surrogate must be at least 25, must have previously given birth, must not be providing the egg, and must have her partner's consent.
Complete mandatory counselling
All parties (intended parents, surrogate, and her partner) must undergo independent counselling from an approved counsellor. The counselling must address the social and psychological implications of surrogacy. Obtain counselling certificates.
Obtain independent legal advice
Each party must receive independent legal advice from a separate lawyer before entering the arrangement. The legal advice must cover the effect of the surrogacy agreement, the parentage transfer process, and the parties' rights and obligations. Obtain solicitor certificates.
Draft the surrogacy agreement
Prepare a written surrogacy agreement setting out the arrangement, the parties' intentions, the expenses the intended parents will cover, and the agreement that the surrogate will relinquish the child. Note: surrogacy agreements are not legally enforceable — the parentage order process is the mechanism for transferring legal parentage.
Manage the pregnancy and birth
Support the parties through the pregnancy. Ensure the intended parents cover reasonable pregnancy-related expenses only (to maintain the altruistic character). After the birth, the surrogate is the legal mother — the intended parents must apply for a parentage order to transfer legal parentage.
Apply for a parentage order
After the birth (and after any mandatory waiting period — e.g., 30 days in NSW), apply to the relevant court for a parentage order transferring legal parentage from the surrogate to the intended parents. The surrogate must consent, and the court must be satisfied the arrangement complies with the Act.
Register the parentage order and update records
Once the court grants the parentage order, lodge it with the Registry of Births, Deaths and Marriages for a new birth certificate to be issued in the intended parents' names. Update Medicare, Centrelink, and other records.
What you will have at the end
A parentage order issued by the court, transferring legal parentage of the child to the intended parents, with a new birth certificate issued and all records updated.
Common issues
- Commercial surrogacy elements (payments beyond reasonable expenses) making the arrangement unlawful
- Not meeting all eligibility requirements under the applicable state Act
- Failing to obtain independent legal advice and counselling certificates before the arrangement
- The surrogate withdrawing consent after birth (the court cannot make a parentage order without consent)
- Cross-jurisdictional issues when the intended parents and surrogate reside in different states
Run this workflow on a real matter
Quillio researches surrogacy legislation across Australian states and identifies the eligibility criteria and procedural requirements for each jurisdiction. See /practice-areas/family-lawyers or start a free trial.
This workflow covers altruistic surrogacy within Australia. International surrogacy arrangements raise additional issues including citizenship, immigration, and the enforceability of overseas parentage orders.
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