Surrogacy often comes into focus in the media, with reporting of celebrities using a surrogate to welcome their newborn. For example, Cameron Diaz and husband Benji Madden recently used a surrogate to welcome their new baby girl into the world.
There can be a lot of confusion about surrogacy in Australia, so we thought we’d create an overview of Australia’s altruistic surrogacy laws.
Altruistic surrogacy (where the surrogate does not receive compensation for her services) is permitted in all Australian States (apart from the Northern Territory where there are no specific surrogacy laws).
Commercial surrogacy (where you find someone and pay a surrogate mother for the service) is not permissible in Australia but it is allowed in other countries.
Surrogacy legislation is quite different in each state, but overall, in Australia surrogacy cannot be a commercial relationship. Surrogacy in Australia has to be for altruistic reasons, that is, someone has to want to help someone else have a pregnancy as they feel it is the right thing to allow that person to have a baby. However Australian legalisation allows us to compensate the gestational carrier, but not pay them.
So why would someone turn to surrogacy?
Surrogacy is not an alternative for fertility treatment. It’s used in situations when people are either not able to or should not carry their own pregnancy.
A surrogacy arrangement may also be considered due to a medical condition where it might be unsafe for a woman to carry a pregnancy. For example, if a women has cystic fibrosis. A woman might not have the lung or heart capacity to carry a pregnancy but they might still want to have a child that is genetically their own. In these circumstances we would recommend surrogacy.
Everyone has a different vision of their family and for some people, starting or growing a family is having a genetic child – and that’s when surrogacy is an option. For example, same-sex male couples who wish to have a child who is genetically related to them can use surrogacy.
The option of surrogacy is important as there are lots of people who don’t have any other opportunity to have a baby as they may have lost their uterus to cancer. Even though we are picking up these cancers a lot earlier, unfortunately some women lose the capacity to carry a pregnancy.
How do you find a surrogate?
The issue we face in Australia is that you are not allowed to advertise for surrogacy, so this type of advert isn’t permitted: ‘I’m looking for a surrogate, I’m prepared to pay $X as compensation’. In the same way, surrogates cannot advertise this service in search of intending parents.
So people need to meet or be introduced: there are online help forums and IVF clinics that have consultations available for women who want to offer surrogacy. Fertility clinics don’t charge for this introduction.
If you know you want to be a surrogate for someone, you can either find them via patient chat groups or call a fertility clinic and see a fertility specialist who will put you in touch with people who need a surrogate.
If you are an intending parent in search of a surrogate, organisations such as Surrogacy Australia have online forums, social events and conferences that aim to connect surrogates with intending parents. They can also provide access and recommendations to lawyers, support, and education around surrogacy arrangements in Australia.
Is there a contract involved between the two parties?
Anonymous surrogacy is not allowed in Australia so before there is a contract, the two parties must have met and there must be an understanding between the two.
We ask people to go through a list of questions: What will be the role of the commissioning mother or parents? Everybody then knows exactly what relationships the various members of the group will have. Then, before anything is done, a contract needs to be in place.
The commissioning parents and the gestational carrier (the person who holds the pregnancy), each have individual contracts where everything is spelt out e.g.
- the lines of responsibility,
- what costs are involved,
- and what is appropriate compensation for those costs.
In the end, all of the rights rest with the gestational carrier (the person who carries the pregnancy) and that’s sometimes one of the issues that we have in Australia as the person who carries the pregnancy may decide to change her mind and decide to keep her pregnancy up to, and including, the birth of the child.
It’s for this reason we are so careful in terms of screening surrogates, making sure their decision is very much for altruistic reasons.
- at least have had one child; preferably have completed their own family;
- not have any immediate desire to have their own baby;
- either be single or in a committed relationship;
- have no medical issues in their previous pregnancy;
- have known the commissioning person for a period of time;
- must have completed psychological and legal evaluations.
At the time of birth, the baby is registered in the name of the gestational carrier, so at the end of the pregnancy, a parenting order needs to be issued by the Court which allows the transfer of the baby to the commissioning parents.
As surrogates aren’t paid in Australia, it is a very special person who gives up a large portion of their life and goes through a pregnancy for someone else. For all these reasons, surrogates are hard to come by.
If you are considering surrogacy, please call the experienced donor team at IVFAustralia, Melbourne IVF, Queensland Fertility Group, and TasIVF on 1800 357 322 to discuss how our surrogacy program can assist you or book an appointment with a fertility specialist.
And if you are an intending parent searching for a surrogate, please contact your local fertility specialist or find more information and support via Surrogacy Australia.