Surrogacy in Australia has become a recognised and increasingly common path to parenthood for individuals and couples who are unable to conceive or carry a child. But with legislation differing between states and a clear divide between altruistic surrogacy and commercial surrogacy, many people still ask: is surrogacy legal in Australia?
This guide breaks down the legal framework behind surrogacy laws Australia, explains how the surrogacy procedure works, and outlines what intended parents need to know — from state-specific rules to costs and key requirements.
Understanding Surrogacy: What It Is and How It Works
Surrogacy is a legal arrangement where a woman agrees to carry and give birth to a child on behalf of another person or couple, known as the intended parent(s). It can be a life-changing option for those who cannot conceive or carry a pregnancy due to medical or biological reasons.
There are two main types of surrogacy: traditional and gestational surrogacy. Traditional surrogacy involves the surrogate’s own egg, while gestational surrogacy uses an embryo created through IVF, typically using the intended parent’s genetic material or donor sperm/egg. In Australia, gestational surrogacy is more common as it reduces legal and emotional complications.
The surrogacy procedure often includes medical assessments, fertility treatments, legal agreements, and counselling for both the surrogate and intended parents. These safeguards help ensure that everyone understands their rights and responsibilities.
Surrogacy Laws in Australia: What You Need to Know
So, is surrogacy legal in Australia? The short answer is yes, but it must follow strict legal requirements that vary across states and territories. While there’s no unified national law, every region permits altruistic surrogacy and prohibits commercial surrogacy.
Legal Conditions for Surrogacy Arrangements
Each state has its own legislation, but most share a consistent legal framework. Generally, the following conditions apply:
- The surrogate must be at least 25 years of age
- The agreement must be made before conception
- Both intended parents and the surrogate must:
- Complete professional counselling
- Receive independent legal advice
- A written surrogacy agreement is recommended, though not always enforceable by law
These steps are designed to protect all parties and ensure the arrangement is entered into freely and with informed consent.
Developments in Surrogacy Law
What are the new laws for surrogacy in Australia? In recent years, several states have updated their regulations to broaden access to altruistic surrogacy. These changes include:
- Allowing single individuals to enter into surrogacy arrangements
- Recognising same-sex couples
- Removing outdated eligibility restrictions
- Simplifying post-birth parentage orders for intended parents
While these improvements vary by jurisdiction, they reflect a national shift toward more inclusive and supportive legislation.
Timeline of Legal Recognition
Modern surrogacy laws Australia began taking shape in the early 2000s. By 2010, most states had legalised altruistic surrogacy, introducing clear requirements and penalties for unlawful practices such as commercial surrogacy.
Engaging a legal professional early can help you meet state-specific obligations and avoid complications throughout the process.
Altruistic Surrogacy: The Legal Model in Australia
Altruistic surrogacy is the only legally permitted form of surrogacy across Australia. It involves a surrogate carrying a child for the intended parents without receiving any form of payment beyond reimbursement for reasonable expenses. This approach ensures that the arrangement is based on goodwill, not financial incentives.
What Expenses Can Be Covered?
While payment for carrying the child is illegal, certain costs can legally be reimbursed, including:
- Medical bills related to pregnancy and birth
- Travel expenses for medical appointments
- Legal and counselling fees
- Health insurance or hospital costs
Each state defines “reasonable expenses” differently, so it’s important to review local legislation and seek legal advice before entering an arrangement.
Legal Safeguards for Altruistic Agreements
To ensure a legally sound process, most states require:
- Pre-conception agreement between parties
- Mandatory counselling for both the surrogate and intended parents
- Independent legal advice for all parties
- An application for a parentage order post-birth, allowing legal transfer of parental rights
These legal steps reinforce the ethical foundation of altruistic surrogacy and protect all individuals involved.
While the process may appear complex, many families in Australia successfully build their families through legally compliant, ethically guided altruistic surrogacy arrangements.
Commercial Surrogacy: Why It’s Banned in Australia
Unlike altruistic surrogacy, commercial surrogacy is strictly prohibited in all Australian states and territories. This form of surrogacy involves compensating a surrogate beyond her reasonable expenses, often as part of a financial contract. Under Australian law, such arrangements are considered exploitative and contrary to public policy.
Legal Consequences of Commercial Surrogacy
Engaging in or arranging a commercial surrogacy agreement can lead to serious penalties, including:
- Fines of up to $110,000 (depending on the jurisdiction)
- Criminal charges, particularly for arranging or advertising paid surrogacy
- Potential imprisonment in some states
Even if commercial surrogacy takes place overseas, individuals living in jurisdictions like Queensland, New South Wales, or the Australian Capital Territory may still face legal consequences upon returning to Australia.
Why Is Paid Surrogacy Illegal in Australia?
The ban on paid surrogacy is rooted in concerns about:
- The commodification of women’s bodies and children
- Coercion or undue pressure placed on financially vulnerable women
- Unequal access based on wealth or socioeconomic status
By limiting surrogacy to altruistic arrangements, Australian lawmakers aim to prioritise the wellbeing and autonomy of surrogates while supporting ethical family-building pathways.
If you’re considering surrogacy in Australia, it’s crucial to understand these legal boundaries. Working with experienced professionals helps ensure your journey remains safe, lawful and respectful to all involved.
Surrogacy by State: Legal Differences Across Australia
Although surrogacy in Australia is legal in every state and territory, the specific laws and processes vary significantly between jurisdictions. This can affect eligibility, legal procedures, and what constitutes reasonable expenses.
Overview of State and Territory Laws
Here’s a snapshot of how surrogacy laws Australia differ by region:
1. New South Wales (NSW)
- Altruistic surrogacy is legal
- Commercial surrogacy, including overseas arrangements, is prohibited
- Counselling and independent legal advice are mandatory for both parties
2. Victoria (VIC)
- Intended parents must prove a medical need
- Surrogates must have previously given birth
- Parentage orders are made through the Country Court of Victoria
3. Queensland (QLD)
- Altruistic surrogacy is legal for heterosexual couples, same-sex couples, and singles
- Engaging in commercial surrogacy overseas is a criminal offence with strict penalties
- Counselling and legal advice are required before the arrangement proceeds
4. South Australia (SA)
- Altruistic surrogacy is allowed for singles, same-sex couples, and medically infertile individuals
- Arrangements must be approved through the South Australian Assisted Reproductive Treatment Unit
- Formal counselling and legal advice are essential parts of the process
5. Western Australia (WA)
- Surrogates must be over 25 and have previously given birth
- Surrogacy agreements must be approved by the Reproductive Technology Council
- Historically limited to heterosexual couples, but recent legislative changes aim to expand access to singles and same-sex couples
6. Tasmania (TAS)
- Altruistic surrogacy is legal
- Intended parents must have lived in Tasmania for at least 12 months prior to entering a surrogacy agreement
- Counselling and legal advice are required before proceeding
7. Northern Territory (NT)
- As of the Surrogacy Act 2022, altruistic surrogacy is now legal under a regulated scheme
- Previously unregulated, NT now provides a legal framework for intended parents and surrogates
- Legal advice and counselling requirements apply
8. Australian Capital Territory (ACT)
- Altruistic surrogacy is legal
- Commercial surrogacy is banned, both locally and overseas
- Surrogacy agreements are not enforceable by law, but parentage orders can be issued by the Supreme Court of the ACT
Why Local Laws Matter
Because surrogacy laws vary so widely, where you live significantly impacts your options and obligations. Before beginning a surrogacy procedure, it’s essential to review your state’s legislation and seek tailored legal advice.
Surrogacy Options Overseas
Some intended parents look abroad for gestational surrogacy due to shorter wait times or perceived cost savings. Countries like the United States and Ukraine are common destinations.
However, international surrogacy involves legal and ethical risks:
- Commercial surrogacy is a criminal offence for residents in NSW, QLD, and the ACT—even if arranged overseas
- Delays in establishing legal parentage and securing citizenship for the child
- Concerns about exploitation in poorly regulated systems
While overseas options exist, Australian laws may still apply. Always consult a legal professional before proceeding.
Other Surrogacy Legal Considerations
Beyond state laws and eligibility, there are several legal aspects that intended parents must understand before starting a surrogacy procedure in Australia. These steps ensure the arrangement is ethical, lawful, and protective of everyone involved.
Parentage and Legal Rights
Although intended parents may be biologically related to the child, they are not automatically recognised as legal parents at birth. Instead:
- The surrogate is listed as the child’s legal mother on the birth certificate
- A parentage order must be applied for through the relevant state court after the birth
- This order transfers legal parentage to the intended parents
Each state has specific requirements and timeframes for applying, so early legal preparation is essential.
Surrogacy Agreements
While not legally binding in most jurisdictions, a written surrogacy agreement is still recommended. It helps:
- Clarify the expectations and responsibilities of each party
- Record consent to the arrangement
- Support applications for parentage orders post-birth
Legal Representation and Counselling
To meet legal requirements, all parties must obtain:
- Independent legal advice from separate lawyers
- Mandatory counselling to explore emotional, social, and psychological implications
This process not only ensures informed consent but also provides an added layer of protection for both the surrogate and the intended parents.
Given the complexity of surrogacy laws Australia, working with experienced legal professionals is strongly recommended from the outset.
Is Surrogacy Legal in Australia and What Should You Do Next?
Is surrogacy legal in Australia? It is — but only under clearly defined laws that vary by state. While altruistic surrogacy is legal nationwide, paying a surrogate beyond reasonable expenses is not. That means commercial surrogacy is banned both within Australia and, in some cases, overseas.
Starting the surrogacy procedure involves more than just finding the right match — there are legal steps, counselling, and parentage orders to work through. It can feel overwhelming, but the right guidance makes all the difference.
If you’re looking for clarity around your rights and responsibilities, or you’re ready to begin the process, KPT Legal can help. We support intended parents and surrogates across the country to ensure every part of the journey meets the requirements of surrogacy laws in Australia — so you can move forward with confidence.
