Yes, surrogacy is legal. Commercial surrogacy however, which is when the surrogate mother is paid to carry the child, is not legal.
When a woman gives birth to a child she and her partner are presumed to be the parents of the child. In the case of surrogacy, the birth mother is the surrogate mother and an application needs to be made to the Court to change the parentage.
Each State and Territory in Australia has their own laws regarding surrogacy. In New South Wales the Surrogacy Act 2010 (NSW) applies. Under this Act an order can be made after application to the Court which provides that the parentage presumption is rebutted. This means that in the case of a surrogate mother giving birth to the child, upon an application for a parentage order to the Court, the surrogate mother is deemed not to be the mother of the child.
To be eligible for a parentage order through the Court the following conditions need to be met:
The surrogacy must not be by commercial means.
The surrogate mother must be at least 25 years of age.
The surrogate mother must have provided informed consent prior to conception.
The application needs to be made within 30 days after the birth of the child.
The child needs to be living with the intended parents at the time of the application.
All parties involved in this surrogacy must have obtained independent legal advice and counselling.
If a parentage order is granted by the court, the intended parents then gain full parenting rights and their names will appear on the child’s Birth Certificate.
Surrogacy is a very complex matter, both legally and emotionally. It is very important to obtain qualified legal advice before entering into any surrogacy agreement. We encourage you to contact one of our experienced Family Law Solicitors if you are considering entering into any type of surrogacy agreement.