Surrogacy in Victoria: What the Law Requires
This page explains how surrogacy works in Victoria, who is eligible, what is required before treatment can begin, and the common issues that intended parents encounter.
Surrogacy in Victoria, is a recognised and lawful pathway to parenthood for people who cannot conceive or carry a child themselves. While Victoria has one of the most established surrogacy frameworks in Australia, it is also one of the most regulated, which means understanding the legal requirements early is critical.
Surrogacy arrangements in Victoria are governed by the Assisted Reproductive Treatment Act 2008, with further reforms being rolled out over time. These laws are designed to protect everyone involved in the arrangement, particularly the surrogate and the child, but they also create specific eligibility criteria and procedural steps that must be followed carefully.
How Surrogacy Works in Victoria
Surrogacy in Victoria is altruistic only and operates under one of the most structured legal frameworks in Australia.
Here is what you need to know about how it works.
How Surrogacy is Regulated in Victoria
Victoria permits altruistic surrogacy only. This means a surrogate cannot be paid for carrying a child, but intended parents may reimburse reasonable out-of-pocket expenses in accordance with the law.
Commercial surrogacy within Victoria is illegal. However, it is not illegal for Victorian residents to engage in commercial surrogacy overseas, although overseas arrangements raise separate legal and practical issues when returning to Australia.
Victoria’s surrogacy laws continue to evolve, and changes are occurring gradually over several years. Because of this, relying on outdated or informal information can cause serious problems later, particularly when applying for parentage orders after the child is born.
Who Can Access Surrogacy in Victoria?
Intended parents
To be eligible for surrogacy in Victoria, intended parents must demonstrate a medical or social need for surrogacy. This includes:
- People who cannot conceive or carry a pregnancy due to medical reasons
- Same-sex couples
- Single people who cannot carry a pregnancy themselves
Eligibility is assessed as part of the required counselling and approval processes. Surrogacy in Victoria is not limited to couples, and marital status is not determinative.
The Surrogate
The surrogate must meet specific criteria:
- She must be at least 25 years old
- In gestational surrogacy arrangements, the surrogate is generally required to have previously given birth to at least one child of her own
This “previous birth” requirement can be waived in exceptional circumstances, but only after careful assessment and approval.
Altruistic Surrogacy and Expenses
All Victorian surrogacy arrangements must be altruistic.
This means
- The surrogate cannot receive payment, gifts, or benefits for acting as a surrogate
- Intended parents may reimburse the surrogate for reasonable out-of-pocket expenses, such as medical costs, travel, maternity clothing, and lost income directly related to the pregnancy
- Any payment outside what is legally permitted may invalidate the arrangement and create legal risk for all parties
Understanding what can and cannot be reimbursed is important, as disputes about expenses can arise later if expectations are unclear.
Mandatory Counselling and Legal Advice
Before any surrogacy arrangement can proceed in Victoria:
- All parties must undertake counselling . Counselling focuses on the medical, emotional, ethical, and long-term implications of surrogacy, including expectations about contact and decision-making.
- All parties must receive independent legal advice . The intended parents and the surrogate must each obtain their own legal advice about the arrangement and its consequences. If you are based in Victoria and looking for a surrogacy lawyer in Melbourne, we can help.
These steps are not optional. They are legal safeguards intended to ensure informed consent and to reduce the risk of disputes.
If the arrangement is a gestational surrogacy arrangement – meaning the surrogate carries an embryo created using the egg of the intended mother or a donor – then additional approval is required.
This means
- The parties must obtain approval from the Patient Review Panel before fertility treatment begins
- Without this approval, the arrangement may not comply with Victorian law, which can jeopardise the ability to obtain a parentage order after birth
This approval step does not apply to traditional surrogacy, but most IVF clinics will only facilitate gestational arrangements.
Traditional vs Gestational Surrogacy in Victoria
There is widespread confusion about whether traditional surrogacy is legal in Victoria.
Traditional surrogacy is legal. This is where the surrogate conceives using her own egg.
However, traditional surrogacy cannot usually be facilitated through IVF clinics, meaning conception typically occurs via home insemination. Some clinics incorrectly state that traditional surrogacy is illegal in Victoria. This is not correct, rather, clinics are limited in the types of arrangements they are permitted to assist with.
Traditional surrogacy involves additional legal and emotional considerations, particularly because the surrogate is also the genetic parent. For this reason, specialist legal advice is strongly recommended. If you need to find a surrogacy lawyer in Melbourne / Victoria, we can help.
Where Treatment Takes Place Matters
For gestational surrogacy arrangements:
- The embryo transfer must occur at a Victorian-registered ART provider
- If the embryo transfer takes place outside Victoria, intended parents may not be eligible for a Surrogacy Parentage Order after the child is born
This is a critical requirement that is often overlooked and can have serious consequences if not followed.
Surrogacy Agreements in Victoria
Currently:
- Written surrogacy agreements are not legally required in Victoria
- However, they are strongly recommended and are commonly prepared as part of the legal advice process
Future legislative reforms may make written agreements mandatory. Even now, a clear written agreement helps set expectations and reduce misunderstandings later in the journey.
Finding a Surrogate in Victoria
Many well-meaning intended parents inadvertently breach the law when trying to find a surrogate, which can complicate matters later. Understanding what is and isn’t permitted before taking action is essential.
This means
- It is illegal to advertise for a surrogate in Victoria, including on social media or online platforms
- This restriction makes finding a surrogate one of the most challenging parts of the process
What Happens After the Birth?
After the child is born, intended parents must apply for a Surrogacy Parentage Order through the court.
Until that order is made:
- The surrogate (and her partner, if she has one) is the child’s legal parent
- Intended parents do not have full legal parental status
This post-birth legal step is crucial and must be handled correctly.
Next steps
Surrogacy in Victoria is achievable, but it is not simple. Each stage – from eligibility and mandatory approvals, to treatment location and parentage orders – must be handled carefully to avoid delays, unnecessary stress, or legal barriers later.
If you are considering surrogacy, or are already part-way through the process, obtaining specialist legal advice early can make a meaningful difference. The surrogacy lawyers at The Family Village work exclusively in this area of law and understand how Victorian requirements fit within the broader Australian surrogacy framework.
You can learn more about our approach on our national Surrogacy Lawyers page, or, if you are based in Victoria, explore our dedicated Surrogacy Lawyers Melbourne service for local, state-specific guidance.
Frequently Asked Questions About Surrogacy in Victoria
A surrogacy arrangement in Victoria is a legal process where a woman agrees to carry a pregnancy in her uterus on behalf of another person or couple who cannot carry a child themselves. This forms part of the broader surrogacy Australia framework and is regulated by Victorian legislation to protect the surrogate, the intended parents, and the child.
There are two main types of surrogacy in Victoria: gestational surrogacy and traditional surrogacy. Most modern arrangements involve a gestational surrogate (also known as a gestational carrier), where the surrogate is not genetically related to the child. Traditional surrogacy, where the surrogate uses her own egg, is legal but less common and usually not facilitated through fertility clinics.
Surrogacy is available to a person or couple who has a medical or social need for surrogacy. This may include people who cannot carry a pregnancy due to medical conditions. Eligibility is assessed as part of the counselling and approval process.
The surrogacy process usually involves creating an embryo using egg and sperm from the intended parents or donors through reproductive technology. This commonly occurs during an IVF treatment cycle at accredited fertility clinics, under the care of fertility specialists. Once approvals are in place, the embryo is transferred to the surrogate’s uterus.
Before treatment, all parties undergo counselling, legal advice, and a comprehensive medical review. This includes assessing the surrogate’s health, discussing the use of fertility drugs, and ensuring everyone understands the potential medical risks involved in pregnancy.
Like all pregnancies, surrogacy involves medical risks during pregnancy and birth, including risks associated with fertility treatment, multiple pregnancies, or complications such as the need for a caesarean section. These risks may affect the mother or baby, and must be discussed openly with medical professionals before proceeding.
The biological mother is the woman whose egg is used to create the embryo. In gestational surrogacy, the biological mother is usually the intended mother or an egg donor, not the surrogate. The surrogate (also called the surrogate mother or birth mother) carries the pregnancy but does not intend to parent the child.
Yes. All parties must complete counselling and receive independent legal advice before entering into a surrogacy arrangement. These steps ensure informed consent and help everyone understand their rights, responsibilities, and expectations.
Fertility clinics are involved in gestational surrogacy arrangements using IVF and other assisted reproductive techniques. Traditional surrogacy, however, is generally not facilitated through clinics and may involve different practical and legal considerations.
Under Victorian surrogacy law, at the time of birth, the woman who gives birth to the child is the child’s legal mother, regardless of genetics. That is true even in gestational surrogacy, where the surrogate has no genetic connection to the child. Legal parentage does not transfer automatically to the intended parents.
Time frames vary significantly. Finding a surrogate often is the longest part of the process. Once a surrogate is identified, counselling, approvals, treatment, pregnancy, and court processes can mean the overall journey takes several years.
Yes. The surrogacy journey involves multiple medical and legal appointments, including counselling sessions, fertility consultations, and court-related processes. Attendance requirements vary depending on your role and stage of the journey.
Yes. Surrogacy laws in Victoria are undergoing gradual reform. Because requirements can change over time, relying on current legal advice rather than informal sources is essential.
