Entering into a surrogacy arrangement
A surrogacy arrangement is an arrangement between a woman (the birth mother) and another person or couple (the intended parents) where the birth mother agrees to become pregnant with a child for the intended parents. After the baby’s birth, the birth mother gives the baby to the intended parents.
Types of surrogacy arrangement
There are 2 types of surrogacy arrangement:
- altruistic (non-commercial)
Only altruistic (non-commercial) surrogacy arrangements are legal in Queensland.
Commercial surrogacy arrangements—where there is a payment, reward or any material benefit to anyone entering into a surrogacy arrangement or agreeing to a parentage order—are illegal.
Who can enter into a surrogacy arrangement
In Queensland, any person, regardless of their relationship status, can enter into a non-commercial surrogacy arrangement.
If you are the intended parent/s, you:
- may be a married or de facto couple (including same-sex de facto couples) or single
- do not need a genetic connection to the baby or birth mother
- may use any method for conception, such as in-vitro fertilisation, artificial insemination, self-insemination or natural conception.
You can make a surrogacy arrangement only before the birth mother becomes pregnant.
If you want a court order to transfer the parentage of your baby born through a surrogacy arrangement, you must meet certain requirements under surrogacy law in Queensland before entering into the arrangement.
The court may refuse the order if you don't meet these requirements.
Read more about getting a parentage order.
How to enter into a surrogacy arrangement and transfer parentage
1. Get independent legal advice
You must get independent legal advice before making a surrogacy arrangement so you fully understand your rights and obligations, and the implications.
If there are 2 intended parents, you can both get legal advice from a lawyer at the same time. Similarly, if you are the birth mother and have a spouse, you and your spouse can get legal advice at the same time.
However, intended parents and birth parents cannot share the same lawyer.
2. Get counselling
Birth parents and intended parents must get counselling from an appropriately qualified counsellor before entering into a surrogacy arrangement. You can share the same counsellor.
Counselling will ensure you are aware of the social and psychological implications of the surrogacy arrangement and parentage order. For example, details such as how you will conceive the child and what genetic material will be used will have long-term implications for all parties.
Counselling should help address these issues.
3. Put the agreement in writing
Birth parents and intended parents must agree on the terms of the surrogacy arrangement, including who will pay the legal and other costs. You will need to put this agreement in writing.
4. Conception and pregnancy
If you are the birth mother, you can decide how the pregnancy will occur and what genetic material will be used. During pregnancy, you have control over your pregnancy.
Read more about the birth mother’s legal rights.
5. Register the birth
The birth parents must register the baby’s birth with the Registry of Births, Deaths and Marriages.
6. Get a surrogacy guidance report
Birth parents and intended parents must get a surrogacy guidance report from an appropriately qualified and independent counsellor after your baby is born. This can't be the same counsellor you spoke with before entering into the surrogacy arrangement.
According to the Surrogacy Act 2010 an appropriately qualified counsellor is someone who is at least 1 of the following:
- a member of the Australian and New Zealand Infertility Counsellors Association
- a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists
- a psychologist who is a member of the Australian Psychological Society
- a social worker who is a member of the Australian Association of Social Workers.
A counsellor is considered independent if they both:
- have not given counselling about the surrogacy arrangement to
- the birth mother
- the birth mother’s spouse (if any)
- an intended parent
- are not directly connected with the medical practitioner who carried out the procedure resulting in the child’s birth.
7. Apply for a parentage order
If you are the intended parents, your baby must live with you for 28 days before you apply to the court to transfer the parentage. Your baby must be between 28 days and 6 months old when you apply.
Read more about getting a parentage order.
8. Court decision
If you are the intended parents and the court grants a parentage order it means the birth parent/s no longer have a legal parental relationship with your baby and you are now your baby’s legal parents. You can register the parentage order with the Registry of Births, Deaths and Marriages and have your baby’s birth certificate changed to show you as the parents.
Find out how to register a parentage order.
Enforcing a surrogacy arrangement
Surrogacy arrangements are not enforceable. This means you may change your mind at any time before the court makes a parentage order.
If you are the birth mother, you may decide not to give up the baby to the intended parents. If you are the intended parents, you may decide not to permanently care for the baby.
However, a court may enforce the part of the arrangement that relates to paying the birth mother’s reasonable surrogacy costs in some circumstances, such as if the birth mother gives up the baby to the intended parents and consented to the parentage order.