Whether you are a surrogate mother, or the intended parents of a child born by surrogacy, we can help you to understand your rights under the law.
Surrogacy is when a woman bears a child for someone else. In NSW commercial surrogacy is illegal, meaning that a woman cannot be paid to have someone else’s child. But altruistic surrogacy is legal, where a woman chooses to bear a child for someone else as a selfless act, with no monetary gain.
Issues around parenting rights for children born through surrogacy can be tricky and it is important that you understand your rights before you enter into an agreement. As part of the Surrogacy Act 2010 (NSW) it is a requirement that all parties must have received legal advice from an Australian legal practitioner before they can enter into a surrogacy agreement. We will treat your private matter with the utmost respect, compassion and confidentiality.
Key features of the Surrogacy Act 2010 (NSW):
Commercial surrogacy is illegal in Australia, and it is also illegal to engage a commercial surrogate in another country
The surrogate mother is entitled to have all their expenses paid by the intended parents, including medical, legal and counselling bills
The surrogate mother must be 25 years of age or more
All parties must receive legal advice and counselling
All parties must have given informed consent prior to conception
The intended parents can gain full parenting rights by applying for a parentage order 30 days after the birth of the child. Once granted, this means that the intended parents become the legal parents of the child and the birth mother no longer has any parenting rights
The genetic information of the child must be stored on a central register, which they are legally entitled to discover once they are 18
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Some common questions about Surrogacy:
If the surrogate mother lives in a country where commercial surrogacy is legal, can I pay them to have my child?
No. The law in NSW makes it illegal for a NSW resident to pay an overseas surrogate mother, regardless of the rules in their country.
Can a surrogate mother change their mind after giving birth?
Yes. Even if the birth mother has given consent prior to conception, she has all of the parenting rights until a parentage order has been passed by the NSW Supreme Court. The intended parents can only apply for a parentage order 30 days after the birth of the child, and the birth mother must agree. The child must be living with the intended parents, not the birth parent, at the time the application for the parentage order is made.
Can the surrogate mother live in a different state to the intended parents?
It depends. Different states and territories in Australia have different laws. In NSW, a couple may become the intended parents of a child born to a surrogate mother living in another state. But in other states or territories the law may specify that all parties to the surrogacy arrangement live in that state or territory.
Is surrogacy available to same sex couples?
Yes. In NSW same sex couples may enter into a surrogacy agreement and be granted a parentage order once the child is born (provided all of the legal requirements are met).