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At Mellor Olsson Lawyers we are fortunate to specialise in the area of surrogacy, which is an invaluable option for people who are unable to carry their own child. Couples or individuals may choose surrogacy for various reasons, whether that be due to infertility, if they are prospective single parents, same-sex couples or anyone who is unable to safely carry a pregnancy to term. Our team take great pride in being a part of this happy aspect of family law, where we work together with our clients to assist them with creating a family.

1. What is surrogacy?

Surrogacy is a unique arrangement in which a female (known as the “surrogate”) carries and gives birth to a child for another person or persons (referred to as “the intended parent or parents”) and willingly agrees to surrender custody of, and rights to the child born as a result of the pregnancy.

Surrogacy is legal across most of Australia, although it is important to note that there are no uniform laws governing this area of law. Instead, each State and Territory has their own legislation. In South Australia for instance, surrogacy is governed by the Surrogacy Act 2019 (SA) which officially came into effect in September 2020. This Act permits parties and individuals to enter into altruistic surrogacy arrangements after signing a Lawful Surrogacy Agreement.

2. What are the legal requirements of a Lawful Surrogacy Agreement?

Under the Act there are specific criteria which must be met by both the surrogate and the intended parent/s prior to entering into a Lawful Surrogacy Agreement. To ensure a thorough understanding of the implications and complexities associated with the agreement, independent legal advice and counselling about the implications must be engaged.

3. Can a surrogate be paid for her services?

No. In Australia it is an offence to enter into a commercial surrogacy arrangement. That means a surrogate cannot be paid for her services beyond the payment of reasonable surrogacy costs (this typically covers counselling, medical or legal costs incurred directly related to the pregnancy). If you are unsure about what is considered to be a reasonable surrogacy cost, we strongly recommend you obtain legal advice.

4. Will the child be related to the surrogate?

It depends on the method of surrogacy used. There are two types – traditional and gestational.

Traditional surrogacy involves the surrogate using her own egg to conceive with sperm from an intended father or donor. In this circumstance, the child would be biologically related to the surrogate mother.

The more common method used in Australia is gestational surrogacy, which is where the embryo transferred to the uterus of the surrogate uses gametes from the intended parents where available, or donor egg and/or donor sperm. In this case, the child would not be biologically related to the surrogate mother.

5. What happens once the child is born?

When the child is born, the surrogate mother will surrender the child to the intended parent/s, however the surrogate mother’s name will be registered on the child’s Birth Certificate legally recognising her as the child’s mother. The intended parents will then need to make an application to the Youth Court for a Parentage Order to change the child’s Birth Certificate.

How can we help?

If you are looking to enter into a Lawful Surrogacy Agreement, or require advice about this area of law, our friendly and experienced team is here is assist. You can send through any enquiries to [email protected] or contact us on 08 8414 3400.