What is surrogacy?

Surrogacy is when a person agrees to carry a pregnancy for someone else. After the baby is born, the birth parent gives custody and guardianship to the intended parent or parents (also known as commissioning parents). Surrogacy has many legal and medical steps that must be met. It is important to be aware of the process, seek professional advice and ensure you have enough support.

Who is involved?

A surrogate is the person who agrees to carry a pregnancy for someone else.

The intended or commissioning parent/s is the person or couple who receive the baby when it is born. They then become the baby’s legal parents.

Many other people need to be considered before taking this life-changing journey. These may include:

• the surrogate’s partner or children (if relevant)
• the intended parent/s other children (if relevant)
• egg or sperm donors (if any) and their families

Why might I choose surrogacy?

Surrogacy can allow you to have a child if you cannot or don’t want to become pregnant yourself. In Australia, surrogacy is only available to people who can’t carry a pregnancy to term naturally.

You may need to use a surrogate if:

• you have a problem with your uterus or have had your uterus removed
• you have health conditions that could make pregnancy dangerous
• you have experienced multiple pregnancy losses (miscarriages)
• you are a single or gay male

What types of surrogacy are there?

There are 2 types of surrogacy — traditional surrogacy and gestational surrogacy.

Traditional surrogacy

In traditional surrogacy, the surrogate uses their own egg. The egg is fertilised with the sperm of the intended parent, either through artificial insemination or in vitro fertilisation (IVF). In this case, the baby is biologically related to the surrogate.

Traditional surrogacy is only allowed in some states in Australia. For example, in Victoria, fertility clinics may not be involved in traditional surrogacy. In Western Australia traditional surrogacy is legal.

Gestational surrogacy

In this type of pregnancy, an embryo is transferred into the surrogate’s uterus. The embryo is made from the egg and sperm of the intended parents or from donors, using IVF. The egg doesn’t come from the surrogate, so the surrogate has no genetic connection the baby.

This is the most common type of surrogacy in Australia.

What types of surrogacy arrangements are there?

Altruistic surrogacy

In Australia, surrogacy arrangements must be altruistic. Altruistic surrogacy means that the surrogate is not paid for carrying the pregnancy.

However, the intended parents must pay for the surrogate’s pregnancy-related costs. This is legal in Australia.

Australian states and territories each have their own laws that regulate altruistic surrogacy, so it is important to get legal advice before you start the process.

Commercial surrogacy

Commercial surrogacy is when a surrogate is paid for their services. This payment is in addition to being reimbursed for any pregnancy-related costs.

This type of surrogacy is banned in Australia. In some states, it is also illegal for residents to use commercial surrogacy overseas.

How is surrogacy regulated?

Surrogates and intended parents must make a formal surrogacy agreement, usually before starting the process.

Surrogacy eligibility criteria

There are strict regulations and eligibility requirements that you must meet before you enter into a surrogacy agreement. There are also legal steps to complete after the birth.

Each state and territory has its own laws that regulate surrogacy:

• Australian Capital Territory
• New South Wales
• Northern Territory
• South Australia
• Tasmania
• Queensland
• Victoria
• Western Australia

Some states do not allow certain people to make surrogacy agreements.

The criteria to approve surrogacy might include:

• age
• state of residence
• health status
• relationship status
• sexual orientation
• gender of the intended parent(s)
• whether the surrogate has had children previously

In Australia, surrogacy arrangements cannot be enforced. This means that if the surrogate does not want to give up the baby or the intended parents refuse to receive the baby after birth, they cannot be forced to.

However, the surrogate can force the intended parents to pay them back for any costs involved in the process.

International surrogacy arrangements

Different laws and steps are involved when organising an international surrogacy arrangement. International surrogacy is when the surrogate lives overseas.

It is very important that you seek professional legal advice before you commit to an international surrogacy arrangement. When the baby is born, the surrogate (and their partner, if they have one) is legally considered the baby’s parent. You will need a court order to transfer parentage of a baby born through a surrogacy arrangement.

The process of obtaining a parentage order is different in each state and territory. It is best to get legal advice before you take steps to start this sort of arrangement.

How do I get started?

If you are interested in surrogacy, the first step is to see a doctor specialising in fertility. Your GP can refer you to a doctor with the relevant expertise.

You may choose to discuss it with your family and friends, and ask them for help.

Is counselling necessary?

The surrogate, intended parent/s and their partners must have counselling before starting the process. This is a requirement in all surrogacy arrangements.

Counselling can help everyone involved understand the complex issues that come up with surrogacy. It can also help make sure that everyone is comfortable with the process. Counselling can help you think through future practical and emotional issues that you may not be aware of when you start the process.

How much does it cost?

The costs of surrogacy in Australia depend on where you are, how many cycles of IVF treatment may be needed and your personal situation.

Surrogacy Australia estimates that surrogacy costs around $55,000 to $75,000 over 2 years of treatment. This cost estimate includes:

• legal fees for both the surrogate and intended parent/s
• IVF fees
• compulsory counselling for both the surrogate and intended parent/s
• compensation to surrogate — surrogate must be paid back for any pregnancy-related costs
• insurance
• travel
• legal costs associated with the transfer of parentage after birth

Generally, the intended parents are expected to cover reasonable costs involved in the process, including the surrogate’s medical, legal, counselling and travel expenses.

It's also important to seek specific advice about medical expenses.

Medicare currently does not subsidise the costs of surrogacy in Australia. If you have private health insurance, check if any of the costs will be covered in your plan.

How do I find a surrogate?

There are many ways you can find a surrogate, including:

• letting family and friends know you are interested in finding a surrogate and asking them for help
• connecting with surrogacy support groups or online forums, such as Surrogacy Australia

The surrogate could be someone you already know or someone you meet during your search.

In some states, you are not allowed to advertise for a surrogate or intended parents.

There are many questions you might consider when choosing a surrogate. Take your time.

Can I become a surrogate?

Offering to carry a baby for someone else to raise is a very generous act. Before you decide if being a surrogate is right for you, check if you are eligible, know your rights and look after yourself.

If you have a partner and children, you should also consider how it will affect them, and you may wish to include them in your discussions. Becoming a surrogate is a big decision.

Eligibility

To become a surrogate, you must:

• be at least 25 years old
• have been pregnant before and given birth to a live child
• not be paid, except for being paid back for any pregnancy-costs

Ideally, as a surrogate you should:

• be physically and mentally healthy
• be settled and have a good support network
• be motivated by a desire to help others
• think carefully what it means to physically and emotionally carry a baby for someone else
• consider your relationship with the intended parents and future relationship with the child

It is preferred that surrogates are between 25 and 40 years old and have already completed their family.

Your rights

As the surrogate, you have financial rights. It's important to discuss all aspects of carrying a baby with the intended parents, and for them to understand your rights.

You also have the right to choose how you manage the pregnancy and birth, even though you are intending for someone else to receive the baby after birth.

Looking after yourself

It's important to take care of yourself and to discuss with health professionals any worries you might have before and during your pregnancy.

Pregnancy can affect your emotional wellbeing and relationships. Maintaining healthy relationships can provide support during the pregnancy and after the birth.

Resources and support

• The Australian Attorney General’s Department Surrogacy in Australia website provides information about surrogacy laws in Australia and helps Australians to understand the legal and ethical considerations involved in domestic and international surrogacy.
• Surrogacy Australia’s Support Service (SASS) is a professional service designed to support both surrogates and intended with counselling, mentoring and help managing expenses.
• If you are considering being a surrogate, visit Surrogacy Australia’s ‘I’m interested in being a surrogate’ to learn about the process and support available for you.

If you need advice or emotional support about being a surrogate, talk to a Pregnancy Birth and Baby maternal child care nurse.