By Gordon Ainger and Charlotte Black

With more and more people choosing to become parents via surrogacy these days, we have been approached by clients seeking advice as to what legal hurdles they must overcome to allow them to commit to and finalise a surrogacy arrangement.

Surrogacy is a type of assisted reproductive technology (or ART) where a woman (the surrogate) carries a baby through pregnancy on behalf of another person or couple and the baby is then handed over to the intended parents after birth.

It is very different from what you might have seen on television or read about in the media as surrogacy in the United States operates under a vastly different legal framework than in Australia.

The law surrounding surrogacy is complex and differs considerably from state to state.  You should obtain early advice if you are considering either becoming a parent through surrogacy or becoming a surrogate and remember that the contents of this article are generic in nature, specific to Victoria only and not specifically tailored to your situation.  Unfortunately, as there remain many gaps in the law surrounding surrogacy, and as surrogacy is still relatively rare, the laws and its ramification are changing from day to day.

Before proceeding with a surrogacy arrangement in Victoria, you must obtain approval from the Patient Review Panel.  Some of the Patient Review Panel requirements include:

  • The surrogate must be at least 25 years old and must have previously given birth to a “live child”;
  • The intended parent must be at least 18 years old;
  • The fertility treatment must occur in Victoria and the intended parents must be Victorian parents;
  • The agreement must be altruistic and not commercial;
  • All parties must receive legal advice

Paying your surrogate?

It is a requirement of the legislation governing surrogacy in Victoria that that the surrogate mother must not receive any material benefit or advantage as a result of the surrogacy arrangement.

What this means is that you cannot pay a surrogate to provide her services to you.

There are however limited circumstances and costs for which a surrogate can be reimbursed for.  These costs are costs which are actually incurred as a consequence of entering into the surrogacy arrangement.  It is recommended that you seek appropriate advice as to what expenses you are able to reimburse your surrogate for prior to commencing your surrogacy arrangement.

Paying a surrogate overseas is also unlawful and you will not be able to take legal steps in Australia to become the baby’s parent(s) if you pay for the services of an overseas surrogate.  This is called, in Australia, commercial surrogacy.  It is a criminal offence to enter into a commercial surrogacy agreement in Victoria and these arrangements are not approved by the Patient Review Board.

Do I need to obtain legal advice?

The simple answer to this is yes – all parties, including the surrogate and the intended parents must obtain legal advice from a lawyer in order to obtain approval from the Patient Review Panel.  As approval from the Patient Review Panel is necessary to proceed your surrogacy arrangement, obtaining this legal advice is compulsory.

What other legal issues should I consider:

Surrogacy Agreement

Whilst not mandatory, at Eales & Mackenzie we highly recommend drawing and executing a formal Surrogacy Agreement.  This allows all parties to formally document the terms of the agreement and lessen the potentiality and uncertainties which may lead to litigation.

The agreement can be used by the parties to define the matters which may be in dispute in the future, such as:

  • Medical expenses;
  • The role the surrogate mother may have;
  • Intended or hoped for parenting arrangements.

These agreements are not binding, but, in the event of a dispute in the future, may be influential if there is litigation and/or a serious breakdown in relationship.

How do I become the child’s parent:

It is important to remember that upon the birth of the child, the intended parents do not automatically become that child’s parent or parents.  The child will remain the child of the surrogate mother and her partner (if applicable) until all the legal formalities are undertaken.  This requires a court case, and the rules about applications like these are complicated.

Obtaining the court order is in no way a simple process.  For example, when an application is made to the court, in considering whether to make the orders, the court will take into account a number of factors including what is in the best interest of the child.  Even then, the court may, at its discretion, take into account other factors.

Whether you have questions as to what expenses your surrogate can be reimbursed for, desire help in drawing up a formal surrogacy agreement, need assistance in applying to the court for a transfer of parentage order or simply require formal legal advice to comply with the requirements of the Patient Review Panel, here at Eales & Mackenzie, we are well equipped to deal with all these issues.

Please feel free to contact Gordon Ainger, our accredited family law specialist, as to any of your questions surrounding surrogacy.