Surrogacy In Australia

A surrogate is someone who carries a baby for another couple or individual who cannot fall pregnant or carry their own child for a range of reasons. Surrogacy is a highly complex process, involving many people other than just the people wanting the baby and the person carrying it. There are many important steps to ensure that both parties make the best decisions – including extensive counselling, psychiatric assessment and independent legal advice.

Commercial surrogacy is currently illegal here in Australia.  Parents are instead heading overseas to pay surrogates in India, the US and Thailand – to carry their children.

Who Uses A Surrogate In Australia?

In some cases, surrogacy is the only option for a couple to have a child. Unlike adoption, surrogacy ensures at least one of the parents is genetically linked to the child. People who choose surrogacy include:

  • Homosexual couples
  • Single men and women
  • Heterosexual couples who are unable to fall pregnant or carry a child due to a range of factors including (but not limited to) infertility, poorly functioning reproductive organs, low sperm function, recurrent miscarriage or implantation failure.

The Surrogacy Process

In surrogacy, an embryo is created using an egg and sperm produced by the intending parents or by using a donor for egg, sperm or both. This fertilised egg(s) is transferred into the surrogate’s uterus. The process usually involves:

  • The intending couple (or individual) and surrogate participating in a medical review including obstetric assessment.
  • Counselling and psychiatric assessment for the intending couple, the surrogate and her partner, including any genetic and mental health issues.
  • Independent legal advice to advise both parties of their rights and obligations.
  • All information, applications and assessments need to be reviewed by an independent Ethics Committee and approved (usually provided by your Surrogacy/IVF Clinic)
  • IVF treatment cycle. If the intending parent is using her own eggs, they will be collected after an IVF treatment cycle and fertilised with her partner’s sperm. The embryo will then be inseminated into the surrogate. Once the pregnancy has been confirmed, the surrogate will be provided with ongoing pregnancy care and liaise with the intending parents as to plans for delivery.
  • At the birth, the baby is legally the child of the birth mother (the surrogate) until the intending parents Parentage Order takes effect (Surrogacy Bill 2010)

What requirements need to be met?

The following conditions are general guidelines that must be fulfilled before surrogacy can be offered as a treatment option. Different Surrogacy Agencies may vary in their requirements.

  • The intending parent has a defined medical disorder that makes it impossible or unacceptably dangerous to carry a baby in her uterus.
  • The surrogate is older than 25, and younger than the age of natural menopause (52 years of age). This may be increased slightly to 55 in the unique situation of a surrogate who is the mother or mother-in-law of the intending parent.
  • The surrogate must have already given birth to a healthy child of her own.
  • The surrogate does not have a past history of pregnancy-related illnesses or complications.
  • The surrogate must have at least met with the intending parents before embryo transfer. An extended relationship is desirable but not essential.
  • Neither the surrogate or intending parents suffer from a significant psychiatric disorder that would impair decision-making or the care of the child.

Surrogacy In AustraliaTypes Of Surrogacy

There are two types of surrogacy available.

  • Complete/Gestational surrogacy – a surrogate is implanted with an already fertilised egg, using intended parents egg and sperm, or that of a selected donor. The surrogate has no genetic contribution to the child.
  • Traditional/Partial/Genetic Contracted surrogacy – The gestational surrogate provides the egg and is impregnated with the intending father’s sperm, usually through artificial insemination. This process is not usually favoured, as the surrogate has a genetic link to the child and has a lot more legal rights should she wish to keep it after birth.

Types Of Surrogacy Arrangements

As previously mentioned, Commercial surrogacy, that is when a woman is paid a fee by the intending parents to carry their child, is illegal in Australia. Altruistic surrogacy is where the surrogate agrees to no payment or reward for carrying the child, and only medical bills and reasonable expenses are covered by the intending parents. Altruistic surrogacy is legal (Surrogacy Act 2010, Parentage Act 2004 and Assisted Reproductive Treatment Act 2008) , but highly regulated in Australia and needs to be carried out under an accredited Australian IVF clinic.

Parents are prohibited from advertising for a surrogate and will usually ask a close family member or friend. Unfortunately it is quite difficult to find such a person willing to enter into a surrogacy arrangement, hence the need to engage with international surrogates and follow the commercial surrogacy process.

Altruistic Surrogacy Laws and Processes in Australia

The Altruistic Surrogacy process is very complex and lengthy. Undergoing altruistic surrogacy is a mix of emotion, money, counsellors, lawyers and doctors. It is important for clients who are either intended parents or the surrogates and their partners that all is clear before entering into the arrangement. It is important to understand that under Australian State and Territory laws it is only legal to advertise for a surrogate if you are a resident of NSW, TAS or NT.

  • QLD Law allows singles, married, defacto couples- but laws are about to change.
  • NSW Law allows, singles, married, defacto couples (including same sex).
  • ACT Law allows all couples but the surrogate must also be a couple.
  • VIC Law allows, singles, married, defacto couples (including same sex).
  • TAS Law currently does not allow surrogacy (Surrogacy Contracts Act 1993) but laws are changing to allow anyone too as long as the surrogate lives in Tasmania.
  • SA Law allows married, heterosexual defacto couples (not same sex couples)
  • WA Law allows married, heterosexual defacto couples (not same sex couples) and single women
  • NT has no legislation regarding surrogacy at all, with no reported plans to introduce any laws.

Problems With Surrogacy

  • The push to transfer several embryos at once to increase the chance of a successful pregnancy. It is reported that many Indian doctors will encourage multiple embryo fertilisation and implantation, resulting in some Australians bringing home four babies when they wanted only one or two.
  • There have been several reports of baby mix-ups. Hospitals in the lesser developed countries tend to be crowded and disorganised and on more than one occasion, babies have been given to the wrong intending parents.
  • The cost of commercial surrogacy is huge. Surrogacy in the US typically costs between $150,000 and $250,000 compared with an average of $50,000 in India.
  • The number of Australians that had faced enormous hospital bills after their babies were born prematurely with inadequate health insurance to cover the unexpected medical costs was also surprisingly high.

Benefits of Surrogacy

  • Surrogacy gives the gift of a genetically linked child to a couple who cannot have one.
  • The surrogacy arrangement can help the parents really feel involved in the pregnancy and birth of their own child
  • Surrogacy has a high success rate in that not many intending parents face issues with the birth mother relinquishing the child.

Should you wish to find out more information about Surrogacy In Australia, Surrogacy Australia is a website that supports Australians who are planning on, or who are already parents via surrogacy arrangements. They provide general information on:

  • Altruistic and Commercial surrogacy,
  • useful groups and upcoming information and social events
  • specific How-To guides
  • legal advice
  • counselling service
  • guides to costs, planning, travel visas and accommodation
  • exporting embryos and embryo transfer
  • service providers, such as surrogacy lawyers and IVF providers, egg donation centres etc
  • overseas clinic comparisons
  • access to surrogacy research resources

Fertility Connections Australia and New Zealand is a private online group for individuals who are interested in connecting with an egg donor, sperm donor, altruistic surrogate, intended parent or co parent. They provide information for sperm donors, egg donors  and surrogacy.

Article Sources: IVF Australia, Surrogacy Australia.org, Surrogacy Australia.com, Fertility Connections Aust and NZ.

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