Surrogacy – Sacha Mastras

Surrogacy – Sacha Mastras

Surrogacy is an arrangement where a woman agrees to carry a baby for another person or couple. Surrogacy laws in New South Wales have only been around since 2006 which means in legal years, it’s very much still a newborn!

Who can be a surrogate?

Under the Surrogacy Act 2010 (‘the Act’), a birth mother is also referred to as a surrogate. Section 6 defines the birth mother as “the woman who agrees to become pregnant or try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement”.

The birth mother needs to be at least 25 years old when she enters into the surrogacy agreement, and while it is not a legal requirement that the birth mother has previously had her own children, most of the IVF clinics will prefer this to be the case.

Who are the parties to a surrogacy agreement?

Section 6 of the Act defines people who become parties to a surrogacy agreement as an “affected party” and includes:

  • The birth mother
  • The birth mother’s husband or partner (if any)
  • Another birth parent (if any)
  • The intended parent or parents


Who are the intended parents?

Under the law, an ‘intended parent’ is “a reference to a person to whom it is agreed the parentage of a child is to be transferred under a surrogacy arrangement”. In NSW, regardless of your gender or relationship status you are able to enter into a surrogacy agreement as long as you are over 18 years of age, resident in NSW at the time of the application and unable to conceive, or if you are a woman that can conceive, it is unlikely that you would be able to carry a pregnancy to term without significant risk to either yourself or the child.

Can the surrogate be paid?

Commercial surrogacy arrangements are illegal in Australia, which means that the surrogate cannot be paid or given a fee, reward or other material benefit or advantage by the intended parent/s.  The surrogate can, however, be reimbursed reasonable associated expenses such as medical costs relating to the pregnancy or birth.

Who is going to be the legal parent/s of a child born to a surrogate?

If all the conditions have been met, between 30 days and 6 months of the child’s birth an Application for a parentage order can be made to the Supreme Court of New South Wales to transfer legal parentage of the child from the surrogate to the intended parents.

What happens if the surrogate changes her mind after the baby is born?

The law says that a surrogacy agreement is not enforceable in NSW which means that a surrogate has the legal right to change her mind.

An intended parent cannot force a birth mother to give the child to the intended parents, even if she has previously agreed to do so. The possibility that a surrogate may change her mind is an important factor that you should consider before entering into a surrogacy agreement.

Is a surrogacy agreement necessary?

The short answer is yes! It’s the first legal aspect in any surrogacy process and the surrogacy agreement must be entered into by the parties before conception.

While the surrogacy agreement itself is not enforceable in NSW, the law requires a surrogacy agreement in writing between all of the parties. The Supreme Court will not accept an Application for parentage order if there was no surrogacy agreement entered into before conception.

A surrogacy agreement is important because it sets out the understanding between the parties to the arrangement, and will help ensure that everyone is “on the same page”.

What needs to be done before entering into a surrogacy agreement?

Before entering into a surrogacy agreement, both the surrogate and the intended parent/s must:

  • Have independent counselling; and
  • Obtain independent legal advice; and
  • Consent freely to entering into the surrogacy agreement.

There are often a lot of questions and challenges around surrogacy arrangements. If surrogacy is something that you are considering, it is important that you obtain legal advice so that you can understand your rights and obligations as well as the legal processes that are required.