Legal Advice for Surrogates
Becoming a surrogate is one of the most generous things a person can do. Alongside the emotional side of the journey, there is a legal process that sits behind every surrogacy arrangement in Australia, and it exists to protect you as much as anyone. This page explains what that process involves for surrogates, what to expect at each stage, and where to get advice before you commit to anything.
The legal side is there to make sure you understand exactly what you are agreeing to, that your interests are represented, and that you are cared for from the first conversation through to after the birth.
At The Family Village, Katie and Sally advise surrogates through the whole legal process. Sally has been a surrogate herself, so the support you get here comes from people who understand the journey from the inside.
Why surrogates need their own lawyer
Australian law requires each party to a surrogacy arrangement to receive independent legal advice before the surrogacy agreement is signed (Attorney-General’s Department). As the surrogate, you must have a lawyer who acts for you alone, not the same lawyer advising the intended parents.
The reason is simple. You and the intended parents are entering the same agreement, but your interests are not identical. Independent advice means someone is looking at the agreement solely from your point of view, explaining what each clause means for you, and making sure nothing has been missed before you commit.
Your partner, if you have one, is usually also a party to the arrangement and will need to be involved in the legal and counselling steps too. We can explain how that works in your state.
What we help surrogates with
Legal advice for surrogates at The Family Village covers every legal step of the journey:
- Explaining how surrogacy works in your state, in plain language, before you commit to anything
- Reviewing the surrogacy agreement and giving you independent legal advice on what it means for you
- Making sure the agreement fairly covers your reasonable pregnancy-related expenses
- Explaining your rights during the pregnancy, including that you remain in control of your own medical care and body
- Setting out what happens at and after the birth, including the parentage order process
- Coordinating with the counselling that has to happen alongside the legal advice
- Answering the questions you may feel you cannot ask the intended parents directly
Because Sally has been through surrogacy as a surrogate, she can talk you through what the experience is actually like. So while Katie gives you legal advice, Sally can give you real life experience. That is something very few firms can offer.
Consultations run by Zoom, phone or in person. Book a time or use the contact page.
Are you paid to be a surrogate in Australia?
Contact UsNo. Only altruistic surrogacy is legal in Australia. A surrogate can be reimbursed for reasonable expenses connected to the pregnancy, but cannot be paid a fee or profit beyond those expenses. Commercial surrogacy, where a surrogate is paid to carry a child, is illegal in every Australian state and territory.
Reasonable expenses can include things like medical costs not covered elsewhere, travel to appointments, maternity items, and loss of income in some circumstances. What counts as reasonable is defined differently across states, which is one of the specific things your legal advice will cover. Getting this right matters, because expenses have to be genuine and documented, and the surrogacy agreement should set out clearly what will and will not be covered.
Are you the legal parent of the baby?
At birth, yes. Under Australian law the surrogate who gives birth is the child’s legal parent, regardless of whether she has any genetic connection to the child. Legal parentage only transfers to the intended parents once a court grants a parentage order after the birth.
This is often the part that worries surrogates most, so it is worth understanding clearly. The parentage order is a formal court process that everyone agrees to in advance, and the surrogacy agreement, counselling and independent legal advice all happen beforehand precisely so that every person going in understands their role. We explain the parentage order process in full, including what is asked of you as the surrogate after the birth.
The legal steps, from a surrogate’s point of view
For a surrogate, the legal side of the journey generally runs in this order:
An initial conversation to understand the arrangement and whether it meets your state’s requirements
Counselling for you (and your partner, if you have one), separate from the legal advice
Independent legal advice on the surrogacy agreement, from your own lawyer
Signing the agreement, which must happen before any fertility treatment begins
The pregnancy, during which you remain in charge of your own medical decisions
The birth
In some states, a post birth counselling is required
The intended parents apply to the court for a parentage order, a process you are part of
You can read the full picture on our surrogacy journey page, which walks through each stage for everyone involved.
About Katie and Sally
Katie founded The Family Village after years of IVF and a five-year journey to find a surrogate for her own family. Her son Vinnie was born via surrogacy in 2022. She has 19 years of legal experience and is a member of the Queensland Law Society.
Sally was Katie’s surrogate, and now works alongside her at The Family Village supporting other surrogates and intended parents through the same process they went through together. For a surrogate researching this for the first time, that means the person helping you has genuinely been where you are
Contact UsQuestions surrogates ask us
Yes. Australian law requires you to receive independent legal advice before signing the surrogacy agreement, from a lawyer who is separate from the one advising the intended parents.
In an altruistic surrogacy arrangement, the intended parents generally cover the surrogate’s reasonable legal costs as part of the expenses of the arrangement. Your legal advice will confirm how this is handled and make sure it is set out in the agreement.
You remain in control of your own body and medical care throughout the pregnancy. Surrogacy agreements are not commercial contracts that can be enforced against you like a business deal. This is one of the most important things independent legal advice exists to explain, and we will talk you through exactly what it means in your situation.
Once a parentage order is granted after the birth, legal parentage transfers to the intended parents, and you are no longer the child’s legal parent. The whole legal process is designed to make that transfer clear and agreed by everyone in advance.
Usually, yes. If you have a partner, they are generally a party to the arrangement and will need to take part in the counselling and legal steps. We can explain what is required where you live.
The legal framework itself is built around protecting the surrogate: independent advice, counselling, and a written agreement, all completed before treatment starts. Our role is to make sure every one of those protections is in place and that you understand them.
Get in touch
If you are considering becoming a surrogate, or someone has asked you to be theirs, talk to us before you commit to anything. There is no pressure, just a clear explanation of what is involved from people who understand it personally.
Book an appointmentOr visit our contact page
