Surrogacy and Family Law: Understanding Your Parental Rights
Surrogacy offers hope to many individuals and couples unable to conceive naturally, allowing them to experience the joy of parenthood. However, the process is far from simple. Australian Family Law governs surrogacy arrangements with strict regulations to ensure fairness, consent, and the protection of all parties involved — especially the child.
This article explores how surrogacy and Family Law intersect, what parental rights you have, and the legal steps required to become a recognised parent.
What Is Surrogacy Under Australian Law?
Surrogacy occurs when a woman (the surrogate) carries a child for another person or couple (the intended parents). Australian law distinguishes between altruistic and commercial surrogacy.
Altruistic surrogacy is legal across all Australian states and territories except the Northern Territory. It means the surrogate receives no payment other than reimbursement for medical or related expenses.
Commercial surrogacy, where payment is made beyond reasonable costs, is illegal throughout Australia.
Surrogacy laws are governed by state legislation, such as the Surrogacy Act 2010 (NSW), and each jurisdiction has its own requirements.
The Legal Recognition of Parents
One of the most significant issues in surrogacy is determining who the legal parents are. Under Australian Family Law, the woman who gives birth is considered the child’s legal mother — even if she is not genetically related. Her partner, if any, may also be recognised as a parent at birth.
To transfer legal parentage to the intended parents, a Parentage Order must be made by the court. This legal order permanently transfers all parental rights and responsibilities from the surrogate to the intended parents.
The Family Court considers various factors before granting this order, including:
Consent from all parties involved
Proof that the surrogacy was altruistic and pre-approved
Evidence that counselling and legal advice were obtained before entering the agreement
The best interests of the child
Without a Parentage Order, the intended parents cannot be recognised as the legal parents, even if they are the biological parents.
The Role of Pre-Surrogacy Agreements
Before any surrogacy arrangement begins, both the surrogate and intended parents must enter into a written surrogacy agreement. While this agreement is not legally enforceable in Australia, it serves as an important document demonstrating intent and consent.
The agreement outlines:
The rights and obligations of each party
Financial arrangements for expenses
The surrogate’s consent to relinquish the child after birth
All parties must receive independent legal advice and counselling before proceeding, which helps protect everyone involved from emotional and legal complications.
Cross-Border Surrogacy and Legal Risks
Many Australians explore international surrogacy due to limited domestic options. However, this can create complex legal challenges.
Australian law does not automatically recognise overseas surrogacy arrangements, even if recognised in the country where the birth occurred.
In some states, such as NSW and Queensland, entering into a commercial surrogacy arrangement overseas is a criminal offence, punishable by fines or imprisonment.
Intended parents must seek legal advice before engaging in any international surrogacy, as the Family Law Act 1975 (Cth) requires specific steps to recognise parental status in Australia.
Parental Rights and Responsibilities After Birth
Once a Parentage Order is granted, the intended parents assume all legal rights and responsibilities. This includes:
The right to make medical, educational, and lifestyle decisions for the child
The duty to provide financial and emotional support
The right to be recognised as the child’s parents on their birth certificate
The surrogate and her partner are released from any parental obligations, ensuring clarity and security for the child’s future.
The Role of Family Lawyers in Surrogacy Cases
Navigating surrogacy can be emotionally and legally challenging. An experienced Family Law firm can guide you through each step — from drafting agreements to applying for parentage orders and advising on interstate or overseas arrangements.
Surrogacy in Australia requires careful planning, transparency, and strict adherence to Family Law. Understanding your rights as intended parents — and the obligations of all parties — is vital to ensure the process is ethical, lawful, and in the child’s best interests.
If you are considering surrogacy, seek legal advice early to protect your parental rights and navigate the process with confidence.
New South Lawyers’ expert Family Law team can help you understand your parental rights in surrogacy.
Contact New South Lawyers today to arrange a confidential consultation and ensure your path to parenthood is legally secure and stress-free.
