Altruistic Surrogacy in the ACT: Your guide to recent reforms

Making the decision to bring a child into your lives is a big and exciting milestone.  Whether you are in a relationship or you are pursuing parenthood on your own, it is not always as easy as it seems.  For some Australians, giving birth is not an option – whether due to fertility challenges, biological barriers, or other reasons.  These individuals or couples might consider other pathways to parenthood, such as adoption or surrogacy.

Surrogacy provides future parents with the opportunity to have a child, where they are unable to give birth.  Whilst in some countries you can pay an individual to give birth on your behalf, commercial surrogacy is illegal in Australia. Surrogacy in Australia is governed by states and territories.  All Australian jurisdictions permit altruistic surrogacy, where the surrogate is unable to profit from the arrangement but their reasonable expenses are covered.

If you reside in the ACT and are pursuing parenthood, you should take note of the recent changes to legislation.   On 25 June 2024, the ACT Government passed the Parentage (Surrogacy) Amendment Bill 2023 (ACT).  The Bill brings a number of amendments to altruistic surrogacy in the ACT which include:

1.      The removal of the requirement that two intended parents enter into a surrogacy arrangement.  This allows for a single person to consider surrogacy, without the need to be in a relationship;

2.      The removal of the requirement to have a genetic connection with the child.  This change will be welcomed by future parents who face fertility challenges as it allows for traditional surrogacy (where the altruistic surrogate may conceive a child using their own egg); and

3.      All parties are required to seek independent legal advice and counselling prior to entering into a surrogacy arrangement.  This will likely reduce the potential for conflict, as altruistic surrogates and aspiring parents can better understand their rights and the nature of the surrogacy agreement.

The amendments better align ACT’s surrogacy laws with that of other Australian states and territories.

Surrogacy presents unique legal challenges for all adults involved.  For example, if you engage in commercial surrogacy, it may be difficult to gain recognition as the child’s legal parent in Australia, and the surrogate may remain the legal parent of the child.  Many future parents and potential altruistic surrogates negotiate and enter into surrogacy arrangements, which can stipulate what ‘reasonable’ expenses will be covered.

The likely costs involved for intended parents and the surrogate may include fertility treatment, legal advice (for you and the surrogate), counselling and psychological assessments, pregnancy and birth related expenses, and costs associated with obtaining a parentage order. Additional costs you should consider may include travel costs, loss of income, allied health treatment and pre-natal supplements.

Surrogacy laws can be tricky to navigate on your own.  For advice in relation to surrogacy laws in the ACT, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

5 Things You Need To Know About Surrogacy

1. Commercial surrogacy is not permitted in Australia.

Although each state has different laws relating to surrogacy arrangements, there is one consistent theme throughout Australia. Commercial surrogacy is not permitted in Australia, and any surrogacy arrangement must be altruistic. This means that one party cannot bargain with another party in order to persuade them to become a birth parent.

In some states, a birth parent may be entitled to be reimbursed certain expenses which they incur as a result of the pregnancy, such as medical expenses.

2. Surrogacy laws vary from state to state.

There is no uniform national legislation in relation to surrogacy arrangements in Australia. This means that the laws relating to surrogacy vary state to state. Accordingly, it is necessary for you to receive specialist advice which is tailored to where the child of a surrogacy arrangement will be born.

3. It is necessary for a person entering a surrogacy agreement to obtain legal advice and also independent counselling.

To ensure that each party entering into a surrogacy agreement is emotionally equipped to do so counselling is required.

Thereafter, and prior to entering into a surrogacy arrangement, each party must obtain independent legal advice regarding the surrogacy arrangement to understand the associated risks and processes.

4. Surrogacy arrangements are not enforceable.

Surrogacy arrangements are not enforceable in Australia. They are however evidence of each party’s intention that a biological parent may not ultimately be the legal parent of a child born of a surrogacy arrangement. In some states, surrogacy arrangements may be able to be enforced in relation to the reimbursement of any expenses, such as medical expenses, which a birth parent has incurred as a result of the pregnancy/birth.

5. After a child of a surrogacy arrangement is born, you may not be the legal parent.

There are complex presumptions which apply in relation to parentage in Australia. A birth mother is considered to be a legal parent until the making of a Parentage Order by a Court, as envisaged by a surrogacy arrangement.

There is also a presumption that any person who is married to, or in a de facto relationship with, the birth parent is also a legal parent of a child born of a surrogacy arrangement.

If you are considering a surrogate, or have been asked to be a birth parent, it is important to obtain independent legal advice to fully understand your options and position at law. Please contact one of our family law specialists in Canberra on (02) 6225 7040 to make an appointment.