Surrogacy in the ACT

A surrogate is a woman who carries a pregnancy for a person who cannot fall pregnant themselves due to medical reasons.  A surrogate has no genetic link to the child. An ‘embryo’ is transferred into the surrogate’s uterus using an egg and sperm produced by the intended parents.  It offers people the possibility of parenthood.

Some important things to know about Surrogacy include:

  • You must find your own surrogate privately. You cannot advertise for someone to be your surrogate, nor can a surrogate advertise to be a surrogate.
  • You cannot pay a surrogate for their service, nor can you give them any kind of reward or benefit. You can only compensate the surrogate for any reasonable expenses incurred with the pregnancy, such as any medical, travel and accommodation expenses. In addition the ACT Parentage Act 2004 extends the prohibition on entering commercial surrogacy arrangements to arrangements entered into outside the jurisdiction (ie. overseas arrangements).
  • The intended parent must have a medical reason for undertaking a surrogacy process, and must have tried all other means for falling pregnant prior to considering surrogacy.
  • The surrogate, surrogates partner and intended parents must obtain independent advice / counselling from:
    • A gynaecologist as to their medical history and suitability for the surrogacy procedure and possible medical risks involved with undergoing the procedure;
    • A registered psychologist addressing the psychological and marital implications of the process,  including implications for relationships and any other children of the relationship and to address the possibilities of medical complications arising out of the process
    • A lawyer regarding the parentage laws surrounding surrogacy and what this means for any child born to a surrogacy process, and what the surrogate’s rights are, and intended parent’s rights are at law.
    • Once parties have received independent advice and counselling from the relevant people, parties must receive approval through the Human Research Ethics Committee (“the Ethics Committee”) prior to the surrogacy process commencing.

People contemplating surrogacy must understand that the surrogacy agreement is not enforceable.

People should still formalise the arrangement in writing due to the complexities involved and to avoid arguments arising in the future.

Surrogacy is a very complex process. If you are considering a surrogacy arrangement and need advice concerning the process or assistance with the drafting of a Surrogacy Agreement please contact:

Anya Aidman

e: aaidman@elringtons.com.au | p: 02 6206 1300