Pre-Covid, surrogacy was becoming increasingly popular in Australia. Surrogacy is a process whereby a woman (the surrogate) offers to carry a baby on behalf of another person or couple, who will then become the child’s parents after birth (the intended parents).

There are two types of surrogacy arrangements – altruistic surrogacy arrangements and commercial surrogacy arrangements.


Altruistic Surrogacy

An altruistic surrogacy arrangement is legal in New South Wales and involves a surrogate who does not receive any compensation or payment for her services. The surrogate can, however, be compensated for any out-of-pocket expenses related to the surrogacy.


Commercial Surrogacy

A commercial surrogacy arrangement involves the surrogate mother receiving payment for her services. In New South Wales, the Surrogacy Act 2010 (NSW) makes it a criminal offence for residents of New South Wales to enter into a commercial surrogacy arrangement.


The Surrogacy Act

In New South Wales, a woman who gives birth to a child conceived by way of an artificial conception procedure is presumed to be the parent of the child.

The NSW Surrogacy Act was introduced to allow intended parents of a child born through a surrogacy arrangement to gain full parenting rights by applying to the Supreme Court of New South Wales for a Parentage Order.

The Supreme Court, however, is only able to make a Parentage Order if certain pre-conditions are met by the parties. They include the following:

  • the surrogacy arrangement must be an altruistic one;
  • the intended parents need to have a social or medical need for surrogacy;
  • the intended parents need to be a member of a couple;
  • the birth mother must be over 25 years of age;
  • each of the intended parents must be at least 18 years of age;
  • the child must be living with the intended parents at the time of the application;
  • the intended parents must be resident in New South Wales at the time of the hearing;
  • the Surrogacy arrangement must be in writing and signed by all parties; and
  • each of the parties must have undergone counselling and obtained legal advice prior to entering into the arrangement.

Applications for a Parentage Order must be commenced in the Supreme Court of New South Wales by the intended parents not less than 30 days and not more than 6 months after the birth of a child.

Once a Parentage Order is made the intended parents obtain full parenting rights for the child and have their names placed on the child’s Birth Certificate.

If you are considering a surrogacy arrangement, contact Antonia Fontana or Daniel Naddaf of this firm for initial advice, on 02 9221 8390.

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