What Is Surrogacy?

Surrogacy Dictionary

Intended Parents (IP)

The parents of a baby born through a surrogacy arrangement.

Gestational carrier

A woman who agrees to have a couple’s embryo implanted in her uterus, and to carry the pregnancy for the couple.

Traditional surrogate

A surrogacy involving a surrogate’s own egg.

Altruistic surrogacy

An unpaid surrogacy arrangement.

Commercial surrogacy

Surrogacy involving a commercial arrangement

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Surrogacy in Australia.

141. That’s the number of recorded surrogacy arrangements occurring at an IVF clinic in Australia in 2021.

That number might feel small, but surrogacy is no new concept. And it’s gaining worldwide recognition with stories of both domestic and international surrogacy arrangements being shared far and wide.

But why all the fuss? All the rules? All the laws? We chat to Sarah Jefford– Family Creation Lawyer practising in surrogacy and donor conception arrangements from her home in Wurundjeri Country, Victoria about the process and what you might need to know if considering surrogacy.

“Many people believe surrogacy is illegal in Australia, which is just not true.” Sarah tells us. There are, however, roadblocks. Perhaps one of the reasons we may be confused is that Australian surrogacy laws are left to each State and Territory to manage. With different arrangements available around the country, getting started can feel overwhelming. Let’s start with the basics.

What is surrogacy?

“A form of assisted reproductive technology (ART) where a woman (the surrogate) offers to carry a baby through pregnancy on behalf of another person or couple and then return the baby to the intended parent(s) once it is born.” – IVF Australia.

WHAT IS SURROGACY?

It’s important to note that these days, surrogates are unlikely to be the egg donor too. In most cases, the embryo is the product of the IPs and in certain circumstances, where the parents require it, they use donor eggs or sperm, either from the surrogate, or another donor.

IVF Australia explains that a person is eligible to commission a surrogate if “she is unlikely to become pregnant, be able to carry a pregnancy or give birth due to a medical condition… if a couple have experienced multiple transfers of a genetically normal embryo and have been unsuccessful… or if the intending parent is a single male or in a same sex male relationship.”

How do Surrogacy laws change by State/ Territory?

For IPs in Australia, there are two surrogacy options available:

Domestic Surrogacy

Both the IPs are based in Australia, as is the surrogate. In Australian law, the arrangement must be altruistic, meaning the surrogate cannot be paid for their services.

Sarah explains, “Australian surrogacy requires the parties to engage in counselling and legal advice before entering the arrangement. There must also be a medical or a social need for surrogacy, which means the intended parents cannot conceive or carry themselves.”

In NSW, ACT and QLD, International / Commercial surrogacy remains illegal, whereas it’s decriminalised in NT and okay in VIC. SA recently had a surrogacy reform, in which single parents are now allowed to pursue surrogacy, but TAS IPs are limited to finding a TAS resident as a surrogate.

International and Commercial Surrogacy

This is where the IPs are based in Australia, and the surrogate lives overseas. Often, agencies are engaged to manage the commercial agreements with the surrogate overseas.

Sarah elaborates “International surrogacy has different criteria, depending on the country. Some countries require the intended parents to be a heterosexual married couple. Countries like the USA and Canada are more welcoming for all family types.”

WHAT IS SURROGACY?

Advocating for reform

There are some roadblocks to domestic surrogacy laws which Sarah would love to see changed.

“It would be great if we could make surrogacy more accessible within Australia so that intended parents don’t need to go overseas for surrogacy … there are prohibitions on advertising for a surrogate in some states, which makes it difficult to find a surrogate. I think we should make advertising legal across the country.”

Sarah tells us, “Surrogacy is a marathon, not a sprint. It’s really complex. It is not a simple way to have a baby, because it involves extra people and complex legal processes. It can be amazing, challenging, exciting and wonderful, as well as hard work.”

Is surrogacy right for my family?

Whether you are seeking assistance with domestic and international surrogacy legal advice or the post-birth Parentage Order, Sarah can assist at all steps along the way. Sarah has published The Australian Surrogacy Handbook, a free guide for intended parents and surrogates starting out on their journey. Sarah also produces The Surrogacy Podcast, which shares over 100 stories from intended parents and surrogates around Australia.
About SarahSarah Jefford is a IVF Mum, egg donor, surrogate and also a practising family and surrogacy lawyer.
She was awarded the Medal of the Order of Australia in 2023, for services to the law, and her work with the surrogacy community.
Through her work as a lawyer, Sarah promotes the best interests of the child and the bodily autonomy of the surrogate, and supports intended parents and surrogates to build a relationship that lasts. Sarah is the only lawyer practising exclusively in surrogacy and donor conception law in Australia and practises across all states and territories.ADDITIONAL SOURCES:
Sarah Jefford 
VARTA
IVF Australia

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