There are two types of surrogacy. In gestational surrogacy, the surrogate carries a baby created from someone else’s egg, so she has no genetic link to the child. In traditional surrogacy, she uses her own egg.
Both are legal in Australia. They’re treated very differently by clinics, though, and the legal and emotional issues aren’t the same. This guide explains the difference for intended parents and potential surrogates.
What is gestational surrogacy?
In gestational surrogacy, an embryo is created through IVF and transferred to the surrogate’s uterus. The egg comes from the intended mother or an egg donor. The sperm comes from the intended father or a sperm donor.
The surrogate carries the pregnancy but isn’t genetically related to the baby. She’s sometimes called a gestational carrier or gestational surrogate mother.
Most surrogacy in Australia is gestational. People often come to it because of uterine factor infertility, repeated IVF failure or a medical condition that makes pregnancy unsafe. Same sex couples and single parents use it too.
How does the gestational surrogacy process work?
The gestational surrogacy process always involves a fertility clinic, which means medical screening, counselling and clinic consents are built in. The usual steps are:
- Assessment by a fertility specialist for the intended parents and the surrogate.
- Counselling and legal advice for everyone, followed by a written surrogacy agreement.
- IVF and fertilisation using the intended parents’ eggs and sperm, or egg donation or a sperm donor where needed.
- The embryo transfer procedure, where a single embryo is placed in the surrogate’s uterus.
- Pregnancy and birth, then a court application for a parentage order.
Our page on the surrogacy journey walks through each stage.
What is traditional surrogacy?
In traditional surrogacy, the surrogate’s own egg is used. She’s the baby’s genetic mother as well as the birth mother. Conception usually happens by artificial insemination with sperm from the intended father or a donor, either at a clinic or at home.
Traditional surrogacy makes up a small share of Australian surrogacy arrangements. It often happens between close friends or family, or where a traditional surrogate prefers to avoid IVF.
Is traditional surrogacy legal in Australia?
Yes. Traditional surrogacy is legal in every state and territory, as long as it’s altruistic and meets the same legal requirements as any other arrangement:
- A written agreement made before conception
- Counselling for everyone involved
- Independent legal advice for the surrogate and the intended parents
- No payment beyond the surrogate’s reasonable costs
If those steps are followed, the intended parents can apply for a parentage order after the birth, the same as with gestational surrogacy.
The practical barrier is clinics. Many won’t offer traditional surrogacy, and in Victoria clinics generally can’t. That leaves home insemination as the only option for some people, which brings its own risks.
Why do clinics prefer gestational surrogacy for embryo transfer?
Clinics and counsellors generally see gestational surrogacy as lower risk because:
- The surrogate has no genetic tie to the child, which many people find makes the handover emotionally clearer
- IVF allows embryo testing and more control over the number of embryos transferred
- The process is supervised from start to finish, with consents and records in place
Traditional surrogacy can still work well. It needs extra care with counselling and the ethical considerations.
How does legal parenthood work for intended parents?
At birth, the surrogate is the legal mother in both types, and her partner (if she has one) is usually the other legal parent. Australia has no pre-birth order. The intended parents become legal parents, with full parental rights, when the court makes a parentage order after the birth.
What differs is the backdrop:
- Gestational surrogacy. The court is transferring parentage from a surrogate who isn’t the biological parent of the child.
- Traditional surrogacy. The surrogate is the genetic mother. The court’s test is still the child’s best interests, and the legal process is the same
In both, the surrogate must consent to the parentage order. No Australian court will force a surrogate to hand over a baby.
Are surrogacy agreements enforceable?
No. Surrogacy agreements aren’t enforceable in Australia, except for the intended parents’ promise to cover the surrogate’s reasonable costs. They still matter, because a written agreement made before conception is one of the conditions for a parentage order. Our surrogacy agreements page explains what they cover.
What are the risks of traditional surrogacy at home?
When traditional surrogacy happens at home, with no clinic involved, the legal steps still have to be done before conception. It’s easy to skip counselling or legal advice when there’s no clinic asking for it. If that happens, a parentage order may not be possible.
There are other risks too:
- No medical screening of the sperm provider
- No clinic records of when and how conception happened
- Less clarity about the surrogate’s partner’s consent
If you’re considering traditional surrogacy at home, get advice first. Many of the same issues arise in home insemination with a known donor.
Gestational surrogate or traditional surrogate: which suits your family?
That depends on your circumstances:
- If the intended mother can provide eggs, gestational surrogacy lets her be the genetic mother.
- If you need donor eggs, you can use an egg donor and a separate gestational surrogate, or a traditional surrogate who provides both. Most Australians choose the first. See surrogacy with donor eggs.
- If your surrogate wants to avoid IVF, traditional surrogacy may appeal, but check whether a clinic in your state will help.
Counselling will help you talk this through, and so will legal advice before anyone commits to the surrogacy journey.
Gestational, traditional, altruistic, commercial surrogacy: what do they mean?
These terms are sometimes mixed up:
- Gestational and traditional describe whose egg is used.
- Altruistic and commercial describe whether the surrogate is paid
Australia’s legal framework allows altruistic surrogacy only. Commercial surrogacy is banned, and paying a surrogacy agency to find a surrogate isn’t allowed either. The surrogate can be reimbursed for reasonable costs but can’t be paid a fee. Read more in our guide to surrogacy laws in Australia.
How we can help with surrogacy in Australia
We act for intended parents and surrogates in both gestational and traditional arrangements, and our work is focused on reproductive law. Katie’s own son was born through surrogacy, and her surrogate, Sally, now works with the firm. We understand the questions from both sides.
Read about our surrogacy legal services or make an appointment.
Frequently Asked Questions
What is a gestational carrier?
A gestational carrier is a surrogate who carries a baby created from someone else’s egg. She has no genetic link to the child.
Is the traditional surrogate the mother?
She’s the genetic and birth mother. She’s also the legal mother at birth until a parentage order transfers parentage to the intended parents.
Can a traditional surrogate keep the baby?
Legally, she can refuse to consent to a parentage order, just as a gestational surrogate can. This is rare, and careful counselling and planning reduce the risk.
Is gestational surrogacy more expensive?
Usually, yes, because it involves IVF and embryo transfer. Our surrogacy costs guide sets out typical ranges.
