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Surrogacy: The Law Explained

Is Surrogacy Legal? 

The laws about Surrogacy are made by each State (or Territory) Government rather than the Federal Government.

This means that what is lawful in relation to a Surrogacy Arrangement is different in each Australian State and Territory.

The law applying to Surrogacy in Queensland is set out in the Surrogacy Act 2010 which commenced on 1 June 2010.

Before 1 June 2010 any Surrogacy Arrangement made in Queensland was not lawful.

Since 1 June 2010 in Queensland:

  • arranging commercial surrogacy is illegal;
  • it is legal to arrange a non-commercial (altruistic) Surrogacy Agreement.

 

Commercial Surrogacy

Commercial Surrogacy is where the birth mother receives a financial benefit for being a surrogate mother.

 

A surrogate birth mother may receive a financial benefit if:

  • she is paid for being a surrogate birth mother; or
  • if she receives some reward for being a surrogate birth mother; or
  • if she receives some advantage for being a surrogate birth mother.

Commercial Surrogacy is illegal in Queensland. In Queensland, birth mothers are not able to be paid for being a surrogate mother, other than being allowed to be reimbursed for reasonable expenses.

Read more about what reasonable expenses may be paid to a surrogate birth mother in our information sheet Payment and Qld Surrogacy Arrangements.

 

Overseas Commercial Surrogacy Arrangements

Arranging surrogacy overseas and bringing the child back to live with you in Australia has received a lot of media interest in the last few years.

Surrogacy clinics in most overseas countries charge for their service with the birth mother then being paid to be a surrogate. This amounts to a commercial surrogacy arrangement

An overseas commercial surrogacy arrangement needs to be legal in your State or Territory.

At the time of writing this information sheet, overseas commercial surrogacy arrangements were able to be made in certain circumstances if you live in Victoria, Tasmania, South Australia, Western Australia, or the Northern Territory.

The Surrogacy Act (Qld) 2010 does not allow Queensland residents to enter into an overseas commercial surrogacy arrangement.

 

Non-Commercial (Altruistic) Surrogacy

 

 



 

Surrogacy is only legal in Queensland if the birth mother is not paid anything, other than some specific allowable expenses.

If you want to know what reasonable expenses may be paid to a surrogate birth mother you can read more in our information sheet Payment and Qld Surrogacy Arrangements.

  • A lawful Surrogacy Agreement in Queensland involves the birth mother and the intended parent(s) entering into an Surrogacy Arrangement through which:
  • the birth mother agrees to become, or try to become pregnant;
  • the birth mother does so with the intention that if the child is born as a result of that pregnancy, the birth parents will relinquish to the intended parent(s) legal custody and guardianship of the child and the child will be treated as a child of the intended parent(s).

To be a legal Surrogacy Agreement, the Child must not be conceived before the Surrogacy Arrangement is entered into.

After it commenced in Queensland on 1 June 2010, the Surrogacy Act 2010 allowed non-commercial (altruistic) Surrogacy Agreements in Queensland for the first time.

Surrogacy in Queensland is often referred to as Altruistic Surrogacy.

Altruistic means not for financial reward. If someone is altruistic it means they volunteer to do something that is in the best interest of someone else, for unselfish reasons, even if they have to sacrifice themselves.

 

 

Note:  This reflects the law in Qld.  The laws in other Australian States of New South Wales, Victoria, Tasmainia, South Australia, Western Australia, Northern Territory and the Australian Capital Territory may be different.

 

Surrogacy: More Information

If you are thinking about entering into a Surrogacy Arrangement you will need to be familiar with the law about Surrogacy.

Unfortunately, not everyone can lawfully enter into a surrogacy arrangement.  The government has passed laws so that only some people are eligible to enter into a surrogacy arrangement.

There are also strict laws on what can be paid to a Surrogate under a Surrogacy Agreement as well as the procedure to enter a Surrogacy Arrangement.

The Qld government has also announced proposed changes to Surrogacy laws.

If you are eligible to enter into a Surrogacy Arrangement, then you should be aware of both the benefits and risks of Surrogacy.

 

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