Entering a surrogacy arrangement

What surrogacy is

Surrogacy is an arrangement where a person agrees to get pregnant and give birth to a child for another person or couple.

After the child is born, the intended parent or parents apply to for an order to become the child’s parents.

Surrogacy can help people to become parents where they may be unable to conceive and carry a child themselves.

Surrogacy in the ACT

Only altruistic surrogacy is legal in the ACT. This means that the surrogate is not paid for their services. They can only be paid for their reasonable expenses.

Intended parents may advertise for a surrogate, provided that it is for an altruistic surrogacy arrangement. It is also legal for another person to help connect potential surrogates with intended parents for an altruistic surrogacy arrangement.

It is a criminal offence to pay someone to become a surrogate in Australia. It is also illegal for an ACT resident to pay someone overseas to become a surrogate. This is called a commercial surrogacy arrangement.

Both gestational and traditional surrogacy are permitted in the ACT:

• Traditional surrogacy is where the surrogate uses their own egg to conceive the child, so they are a genetic parent of the child.
• Gestational surrogacy is where a surrogate is not a genetic parent and the child is conceived with an egg from an intended parent, or a donor egg.

Intended parents may be, but do not need to be, the genetic parents of the child. The child can be conceived using a donor egg and sperm.

You can read the ACT legislation about surrogacy in the Parentage Act 2004.

Who can be an intended parent

An intended parent is a person who intends to become the child’s legal parent.

You can be an intended parent if you are 18 or older. You can be single or in a couple, including an LGBTIQA+ couple.

Who can be a surrogate

A surrogate is the person who becomes pregnant and gives birth to a child.

You can be a surrogate in the ACT if you’re either:

• 25 or older
• 18 to 25 if the Court is satisfied, on the basis of a counsellor’s opinion, that they have sufficient maturity and understanding of the implications.

The counsellor assessment needs to find that you have sufficient maturity to understand:

• the surrogacy arrangements
• the social and psychological implications of surrogacy.

Your rights as a surrogate

A surrogate has the same rights to make decisions about their body as any other person does. This includes how you look after yourself and how you manage your pregnancy and birth. You also have the right to terminate your pregnancy if you choose.

Only altruistic surrogacy is allowed in the ACT. This means that you can’t be paid to be a surrogate. But your reasonable expenses related to the surrogacy can be reimbursed or paid for.

A reasonable expense can include costs for:

• entering into a surrogacy arrangement
• becoming or trying to become pregnant
• being pregnant
• giving birth.

Read more about what a reasonable expense is in the Parentage Regulation 2024.

Before you enter a surrogacy arrangement

Entering into a surrogacy arrangement is a significant decision and it is important that everyone involved fully understands their rights and responsibilities.

There are some things you must do before you enter a surrogacy arrangement in the ACT. These are important to protect the people involved in the surrogacy arrangement and the child.

Step 1: get legal advice

Before you enter a surrogacy arrangement you need to get legal advice. This is so everyone can know their rights, responsibilities and the legal implications.

You need to get independent legal advice. This means that the intended parent or parents must see a different lawyer than the surrogate and their partner, if they have one.

Step 2: get counselling

You must get counselling before entering a surrogacy arrangement. This is important to understand the emotional and psychological impacts of surrogacy.

The counsellor you see can’t be connected to the doctor or service who provide fertility services for the pregnancy.

There are special requirements for counsellors for surrogacy. They must be a registered psychologist, psychiatrist or social worker, or a full member of the Australian and New Zealand Infertility Counsellors’ Association.

Step 3: agree to a surrogacy arrangement

All parties to a surrogacy arrangement must have an agreement made in writing before the surrogate becomes pregnant.

Keep in mind that in the ACT, a surrogacy agreement is not enforceable. If the surrogate changes their mind and does not consent to a parentage order being made, they will remain the legal parent of the child.

Transferring parentage

When a child is born through surrogacy, the surrogate and their partner, if they have one, are the presumed parents.

The intended parent needs to apply for a parentage order to transfer legal parentage.

How to apply for a parentage order

An intended parent can make an application to the ACT Supreme Court for a parentage order once the child is 4 weeks old. You must submit the application before the child is 6 months old.

In your application you need to include:

• evidence that all parties have received independent counselling before entering a surrogacy agreement
• evidence that all parties received independent legal advice before entering a surrogacy agreement
• a copy of the surrogacy agreement
• any other documents the Court requests.

When making a parentage order, the Supreme Court will need to be sure that:

• The surrogate, and their partner if they have one, agree to the making of the order freely and with full understanding of what’s involved
• The requirements for a surrogacy arrangement are met
• Making an order is in the best interest of the child.

Other situations

The Supreme Court may be able to make a parentage order even if some requirements for a surrogacy arrangement aren’t met, but making the order is in the best interests of the child.

The Court can also make an order where an application was submitted after 6 months, in exceptional circumstances.

In limited circumstances the Court can make a parentage order even though the child was born through commercial surrogacy. An order can only be made where the child is facing a pressing disadvantage and the Court finds that it is reasonable in all the circumstances.