What Is a Surrogacy Agreement?
A surrogacy agreement is a written document that records the intentions and expectations of everyone involved in a surrogacy arrangement before conception occurs.
In a surrogacy agreement, the intended parents and surrogate (and her partner, if applicable) agree on matters including:
- The intention that the child will be raised by the intended parents
- How pregnancy-related expenses will be handled
- Medical decision-making during pregnancy
- Communication and involvement during the pregnancy
- Arrangements after the birth
- Practical matters like travel, appointments, and support
Important: A surrogacy agreement is not a commercial contract. Australian courts will not enforce surrogacy agreements like standard contracts – a court cannot force a surrogate to hand over a child, and cannot compel intended parents to take the child.
However, surrogacy agreements serve critical legal purposes:
- Required by law in most states before treatment begins
- Essential evidence for parentage order applications
- Demonstrates informed consent from all parties
- Clarifies expectations and reduces misunderstandings
- Provides roadmap if circumstances change
Are Surrogacy Agreements Legally Required in Australia?
It depends on the state:
States Where Written Agreements Are Mandatory:
Queensland
- Surrogacy Act 2010 (Qld) requires written agreement before conception
- Agreement must be signed before embryo transfer or fertility treatment
- All parties must have legal advice before signing
New South Wales
- Surrogacy Act 2010 (NSW) requires written agreement before conception
- Must be signed before treatment begins
- Independent legal advice required for all parties prior to signing
Western Australia
- Surrogacy Act 2008 (WA) requires written agreement
- Must be signed before conception
- Legal advice required by all parties prior to signing
Australian Capital Territory
- Parentage Act 2004 (ACT) requires written agreement
- Must be completed before conception
- Legal advice required by all parties prior to signing.
South Australia
- Family Relationships Act 1975 (SA) requires written agreement
- Must be in place before treatment
Tasmania
- Surrogacy Act 2012 (Tas) requires written agreement
- Must be signed before conception
- Independent Legal Advice required prior to written agreement being signed.
Northern Territory
- Surrogacy Act 2022 requires a written agreement
- Certificates that independent legal advice and counselling have been undertaken are to be attached to the Surrogacy Agreement.
States Where Written Agreements Are Not Mandatory (But Recommended):
Victoria
- Not currently required by law
- However: Strongly recommended and expected by courts
- Patient Review Panel approval process assumes agreement exists
- Future reforms likely to make agreements mandatory
When Must a Surrogacy Agreement Be Signed?
Critical Rule: In states where agreements are required, they must be signed before any embryo transfer or fertility treatment begins.
Timeline:
Too late:
- After embryo transfer
- After insemination
- During pregnancy
- After birth
Correct timing:
- After counselling completed
- After all parties received legal advice
- Before any fertility treatment or conception
What If Treatment Has Already Started?
If treatment began before the agreement was signed, this is a serious issue that must be addressed.
Contact UsConsequences:
- May make a parentage order application more complex
- Court may use discretion if other requirements met
What to Do:
- Never backdate documents (this is fraud)
- Disclose issue to your lawyer immediately
- Lawyer will advise on options (court discretion, alternative pathways)
- Full honesty with court is essential
What Should Be Included in a Surrogacy Agreement?
A comprehensive surrogacy agreement typically addresses:
1. Parties and Background
- Names and details of all parties (intended parents, surrogate, surrogate’s partner)
- Acknowledgment of legal advice and counselling
- Statement that agreement signed voluntarily
- Confirmation altruistic arrangement (not commercial)
2. Intentions and Commitments
Core Intention:
- Surrogate agrees to carry pregnancy for the intended parents
- Intended parents agree to accept parental responsibility
- Intention that the child will live with, and be raised by the intended parents
Medical Treatment:
- Type of surrogacy (gestational or traditional)
- Fertility clinic details
- Medical procedures planned
- Number of embryo transfer attempts
3. Medical Decision-Making During Pregnancy
Who decides about:
- Prenatal testing and screening
- Pregnancy management decisions
- Delivery method and location
- Medical interventions during pregnancy
- Termination (extremely sensitive – requires careful, nuanced discussion assisting in counselling)
Surrogate’s autonomy:
- Surrogate maintains right to make final medical decisions about her own body
- Agreement cannot override surrogate’s medical autonomy
- Communication and consultation process if disagreements
4. Pregnancy-Related Expenses
What can be reimbursed:
- Medical and hospital costs not covered by Medicare/insurance
- Fertility treatment costs
- Medications and supplements
- Maternity clothing
- Travel to appointments
- Parking and meals during appointments
- Counselling and legal fees
- Lost income directly related to pregnancy/recovery
- Postnatal medical care related to pregnancy
What documentation is required:
- Receipts for all expenses
- When payments will be made
- How payments will be processed
- Record-keeping requirements
What is NOT permitted:
- Payment or fee to surrogate
- Gifts or benefits constituting commercial arrangement
- Payment beyond reasonable expenses
5. Communication and Involvement
During pregnancy:
- How often intended parents and surrogate will communicate (sometimes)
- Attendance at appointments and scans
- Sharing of medical information
- Social media and privacy
Birth:
- Who will be present at birth
- Hospital arrangements
- First moments with baby
- Photography and announcements
6. After Birth
Immediate post-birth:
- Where baby will go from hospital
- Breastfeeding or formula feeding
- Contact between surrogate and baby initially
- Support for surrogate’s recovery
Ongoing:
- Long-term contact arrangements (if any)
- Information sharing about child
- Relationship between families going forward
7. Practical Arrangements
- Insurance coverage
- Employment considerations
- Travel requirements
- Accommodation if interstate
- Support person arrangements
- What happens if circumstances change
8. Contingencies
What if:
- Multiple pregnancy occurs
- Health complications arise
- Relationship between parties breaks down
- Surrogate or intended parents want to end arrangement
- Baby has health issues or disability
- Surrogate or intended parents die during pregnancy
- Surrogate miscarries
Note: These provisions don’t make outcomes enforceable, but clarify thinking and reduce uncertainty.
Surrogacy Agreements Are Not Commercial Contracts
This is critical to understand:
Courts will NOT:
- Force a surrogate to hand over a child
- Compel intended parents to take a child
- Enforce financial penalties for changing mind
- Treat agreement like a standard contract
Why?
- Surrogacy involves human beings, not commodities
- Surrogate’s consent must remain voluntary throughout
- Child’s best interests paramount
- Public policy prohibits commercial surrogacy
But written agreements still matter because:
- Required by law before conception in most states
- Evidence of everyone’s intentions for parentage order
- Demonstrates informed consent
- Helps resolve disputes if they arise
- Provides clarity and reduces conflict
Do All Parties Need Separate Legal Advice?
Yes, this is required by law in all states where surrogacy is regulated.
Why separate advice matters:
For Intended Parents:
- Understand your legal position and risks
- Know what the parentage order process involves
- Understand the surrogate’s rights and your obligations
- Know what can and cannot be reimbursed
For Surrogate:
- Understand you remain the legal parent until court order
- Know your rights and the legal protections you have
- Understand you can withdraw consent (until it’s formally given post-birth)
- Know what expenses are reasonable
- Understand medical autonomy is yours
For the Surrogate’s Partner:
- Understand legal position and need to consent
- Know how you are affected by the arrangement
- Understand your role and responsibilities
How Surrogacy Agreements Differ by State
Queensland
Requirements:
- Written agreement mandatory
- Must be signed before conception
- All parties must have legal advice
- All parties must have counselling
- Agreement is evidence for parentage order application to Children’s Court
Key Features:
- Less prescriptive about content than some states
- Court focuses on whether agreement existed and timing
- Expenses must be clearly documented
New South Wales
Requirements:
- Written agreement mandatory under Surrogacy Act 2010 (NSW)
- Must be signed before conception
- Independent legal advice required for all parties
- Counselling required for all parties
- Surrogate must have given birth previously (legislative requirement)
Key Features:
- Supreme Court scrutinises agreement during parentage order application
- Commercial payments can invalidate entire arrangement
- Agreement is key evidence of informed consent
Victoria
Current Position:
- Written agreement not technically required by current law
- However: Strongly recommended and practically essential
Reforms:
- Victorian law is being reformed
- Written agreements likely to become mandatory
- Better to have agreement now than rely on informal arrangements
Key Features:
- Patient Review Panel approval process assumes agreement in place
- County Court expects to see agreement for parentage order
- Medical treatment requires clear documented intentions
Other States
Western Australia, ACT, South Australia, Tasmania, Northern Territory:
- All require written agreements
- Must be signed before conception
- Legal advice required
- Similar principles to QLD/NSW
Common Problems with Surrogacy Agreements
1. Agreement Signed Too Late
The Problem: Agreement signed after embryo transfer or during pregnancy.
Consequences:
- Violates legal requirements in most states
- Risk that parentage order being refused
- Court may use discretion if all other requirements met
Solution:
- Full disclosure to lawyer and court
- Never backdate agreement
- Lawyer will advise on remedial options
2. Insufficient or No Legal Advice
The Problem: Parties didn’t get proper independent legal advice before signing, or used same lawyer, or skipped legal advice entirely.
Consequences:
- Does not meet legal requirements
- Consent may not be properly informed
- Parentage order application may be refused
Solution:
- All parties must receive separate, independent advice
- Advice must be before agreement is signed
- Lawyer must be experienced in surrogacy law
3. Commercial Payments or Unclear Expense Provisions
The Problem: Agreement includes payments that may constitute commercial surrogacy, or expense provisions are vague.
Consequences:
- Commercial surrogacy is illegal in all Australian states
- Unclear expenses create disputes later
- May jeopardise parentage order
Solution:
- Only include genuine pregnancy-related expenses
- Be specific about what can be reimbursed
- Keep all receipts and records
- Lawyer reviews all expense provisions
4. Unrealistic or Unclear Provisions
The Problem: Agreement tries to control surrogate’s behavior unreasonably, or leaves critical matters unclear.
Examples of Problematic Provisions:
- Dictating surrogate’s diet, exercise, or lifestyle rigidly
- Restricting surrogate’s contact with others
- Unclear about who makes medical decisions
- No discussion of contingencies
Solution:
- Agreement should be realistic and respectful
- Focus on communication and consultation, not control
- Address contingencies thoughtfully
- Acknowledge surrogate’s autonomy
5. Copy-Paste from Another State
The Problem: Using agreement template from wrong state or generic international template.
Consequences:
- May not meet your state’s specific requirements
- May include irrelevant or incorrect provisions
- May omit required elements
Solution:
- Use lawyer familiar with your state’s requirements
- Ensure agreement tailored to your situation
- Don’t rely on online templates
How Much Does a Surrogacy Agreement Cost?
Legal fees for drafting surrogacy agreement:
Make an AppointmentIntended Parents’ Lawyer:
- Drafting comprehensive agreement: $1,800 – $5,000
- Depends on complexity and lawyer’s experience
- Fixed-fee arrangements recommended
Surrogate’s Lawyer:
- Reviewing agreement and advising surrogate: $1,500 – $3,000
- Less than drafting because reviewing existing document
- Sometimes included in overall surrogacy legal package
Surrogate’s Partner’s Lawyer:
- Reviewing and advising: $1,000 – $2,000
- Similar to surrogate’s advice but may be briefer
Total Typical Cost for All Legal Advice: $5,000 – $10,000
Who Pays: Intended parents typically pay legal costs for all parties as these are considered reasonable surrogacy expenses
DIY Surrogacy Agreements: Why This Is Risky
You might be tempted to:
- Download a template online
- Copy a friend’s agreement
- Draft your own agreement
Why this is problematic:
State-specific requirements
- Each state has different legal requirements
- Generic templates don’t address your state’s law
- Missing one requirement can jeopardise parentage order
Legal complexities
- Surrogacy law intersects with family law, health law, and more
- Easy to create unenforceable or problematic provisions
- Commercial payment risks if expenses worded incorrectly
False economy
- Cheap or free agreement now can cost tens of thousands later
- Parentage order complications far exceed upfront legal costs
- Cannot undo mistakes made before conception
Risk to relationships
- Poorly drafted agreements create confusion and conflict
- Unclear provisions lead to disputes
- Professional drafting protects all relationships
When DIY might be acceptable: Really, it isn’t. Surrogacy agreements are too important and state-specific to attempt without proper legal advice.
How Long Does It Take to Prepare a Surrogacy Agreement?
Typical Timeline:
| Stage | Timeframe |
| Initial consultation | 1-2 weeks to schedule |
| Agreement drafting | 1-2 weeks |
| Surrogate’s lawyer review | 1-2 weeks |
| Negotiations/revisions | 1-2 weeks (if needed) |
| All parties receive final advice | 1 week |
| Agreement signing | 1 day |
| Total from birth to new birth certificate | 6-10 months |
Plan ahead: Don’t wait until you’re ready to start treatment. Begin the legal process early so agreement is ready when you are.
Can a Surrogacy Agreement Be Changed After Signing?
Before conception: Yes, if all parties agree and receive fresh legal advice.
During pregnancy: Can document changes in writing, but doesn’t change that original agreement should have been in place before conception.
After conception: Problematic in states requiring agreement before conception. Changes should be documented but original timing requirements may already be violated.
Best practice:
- Get agreement right the first time
- Address contingencies upfront
- Communicate if circumstances change
- Document any changes in writing
- All parties receive advice on changes
Surrogacy Agreements vs Parentage Orders
Common Confusion:
People sometimes think the surrogacy agreement IS the legal transfer of parentage. It’s not.
Surrogacy Agreement:
- Created before conception
- Records intentions and expectations
- Not enforceable like standard contract
- Evidence for parentage order application
Parentage Order:
- Applied for after birth
- Made by court
- Legally transfers parentage
- Final and enforceable
You need both:
- Agreement before conception (required in most states)
- Parentage order after birth (to become legal parent)
Interstate and International Surrogacy Agreements
Interstate Arrangements:
If intended parents and surrogate live in different states:
- Laws of both states may apply
- Agreement may have to comply with both jurisdictions
- Lawyer expertise in both states essential
International Arrangements:
If surrogacy arrangement is overseas:
- Australian surrogacy agreement may not be relevant
- Overseas country’s laws apply to agreement there
- Bringing child to Australia has separate legal pathway
- Australian parentage order process different for international surrogacy
Frequently asked questions
No. Each party (intended parents, surrogate, surrogate’s partner) must receive independent legal advice from separate lawyers. This ensures everyone’s interests are protected and consent is informed.
In most states, yes – it’s legally required. Even in states where not required, it’s essential. Good relationships can become complicated, circumstances change, and clear agreements prevent disputes.
No. Decisions about termination are the surrogate’s alone. An agreement can discuss how this would be approached, but cannot require or prevent termination.
This can be discussed in the agreement, but it’s not legally enforceable. Intended parents are under no obligation to maintain contact after parentage order is granted. However, many families do maintain relationships, and discussing expectations upfront is valuable.
You can document changes, but this doesn’t fix the requirement in most states that agreement be in place before conception. Changes should be in writing with all parties receiving advice.
In most states, the partner’s consent is required. If a partner refuses, this creates a significant obstacle to proceeding. Legal advice is essential.
Yes. Same requirements apply whether gestational or traditional surrogacy.
You may need both a surrogacy agreement and a donor agreement. Your lawyer will need to advise on the structure.
No. Commercial surrogacy is illegal in all Australian states regardless of whether everyone agrees. This is a matter of law, not choice.
Get Your Surrogacy Agreement Prepared Correctly
The Family Village offers unique experience in surrogacy law across all Australian states.
We provide:
- Fixed-fee surrogacy agreement drafting
- Independent legal advice for surrogates
- Independent legal advice for partners
- State-specific expertise (QLD, NSW, VIC, and all states)
- Tailored agreements for your specific situation
- Fast turnaround when needed
Our process:
- Initial consultation – Understand your situation and timeline
- Draft agreement – Comprehensive, compliant with your state’s law
- Surrogate’s lawyer reviews – Independent advice for surrogate
- Revisions if needed – Negotiate any changes
- Final advice for all parties – Everyone understands agreement fully
- Signing – Agreement executed and you’re ready to proceed
Don’t risk your surrogacy journey with:
- DIY agreements
- Generic online templates
- Lawyers inexperienced in surrogacy
- Cutting corners on legal advice
Get it right from the start.
Book Your Surrogacy Agreement Consultation
Whether you’re just starting to plan or ready to proceed, we can help.
How we can help
The Family Village offers a free initial consultation for women who are considering becoming surrogates and want to understand the process and expectations. This consultation can be undertaken with Katie (our lawyer) or Sally (our resident surrogate/paralegal) so that you can get a full picture from all sides of the fence!
Legal advice is provided alongside the required surrogacy counselling. The surrogacy process includes counselling, legal advice, and clinic assessments. It is important for all parties to ensure they meet the eligibility criteria for surrogacy before scheduling legal advice.
Contact UsHow it works
Katie provides legal advice for altruistic surrogacy arrangements throughout Australia. All advice is delivered via Zoom/teams, email, and phone, or in-person. The Family Village has a network of trusted professionals they regularly work with. Be sure to ask for a recommendation if you are seeking recommendations for another team member.
Legal advice for surrogacy arrangements includes a consultation, drafting a surrogacy agreement, and liaising with the other lawyer. Katie offers fixed-fee services, so you do not need to worry about fees accumulating by the minute or hour.
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