There is a common misconception in Australia that surrogacy is not legal.
Yes, it’s legal! As an expecting intended parent, I was asked this question almost every day, even by legal colleagues. Whilst surrogacy in Australia is not without its complications and limitations, it is legal.
Surrogacy across the states
Surrogacy in Australia is regulated by state (or territory) based legalisation. That means the requirements of legal surrogacy can be slightly different in each state (or territory) depending on where the surrogacy is to occur. Having said that, there is one predominate common feature of surrogacy legislation across all states and territories in Australia– that is, it must be altruistic.
What does altruistic surrogacy mean?
Altruistic surrogacy as opposed to commercial surrogacy, is one where a surrogate mother cannot be commercially compensated for her participation in a surrogacy arrangement. Altruistic surrogacy therefore arises from the kindness of a surrogate mother who takes on the risks of pregnancy and childbirth knowing she will receive no commercial benefit. That doesn’t mean a surrogate will be out of pocket. In fact, legislation in Australia requires an intended parent to pay for all expenses associated with the surrogate becoming or trying to become pregnant, pregnancy and the birth. In some states and territories this reimbursement extends to a period of time after the birth while the surrogate mother recovers and remains away from their usual occupation.
Medical need for surrogacy
In most states in Australia, eligibility for surrogacy requires evidence from the intended parents that they have a “medical or social need” for the surrogacy.
A “medical need” generally refers to a heterosexual couple who can medically evidence that they cannot conceive, or it is unsafe for them to conceive, carry and birth a child. This requirement needs to be signed off by a medical specialist. A “social need” generally captures the need for surrogacy in same sex couples. If you require further information, please see our article here on Meeting the Medical or Social Need for Surrogacy in Australia.
Surrogacy in Western Australia
Unfortunately, in Western Australia, the social need for surrogacy in same sex couples is yet to be recognised by the law. In that state, surrogacy arrangements are only permitted between heterosexual couples with a medical need for surrogacy.
