Surrogacy (Qld)

Surrogacy is a method of assisted reproduction where a woman agrees to carry and give birth to a child on behalf of another person or couple. In Australia, surrogacy law varies from state to state. In Queensland, surrogacy arrangements are governed by the Surrogacy Act 2010, (the Act) which provides a clear legal framework for managing the rights and responsibilities of all parties. This article provides a brief analysis of the surrogacy laws in Queensland, focusing on the legal requirements, processes, and ethical considerations.

Types of surrogacy

Surrogacy can generally be divided into two main categories:

Traditional surrogacy

The surrogate uses her own eggs and is therefore genetically related to the child. In such cases, conception typically occurs through artificial insemination, sometimes using the sperm of an intended parent.

Gestational surrogacy

In this type of surrogacy, the surrogate has no genetic link to the child. Instead, embryos created using the intended parents’ or donors’ gametes are implanted into the surrogate’s uterus through in-vitro fertilization (IVF).

Under Queensland law, both types of surrogacy are recognised, but the legal framework is primarily designed to regulate altruistic gestational surrogacy.

What is altruistic surrogacy?

In Queensland, only altruistic surrogacy is legally permitted. This means the surrogate can be reimbursed for reasonable costs incurred during the process of acting as a surrogate but cannot receive payment beyond these expenses.

Prohibition on advertising

Queensland law prohibits advertising for surrogacy arrangements. This includes both seeking a surrogate and offering to act as a surrogate. Breaching this prohibition can result in penalties, as the law aims to prevent the commercialisation of surrogacy and the exploitation of vulnerable individuals.

Prohibition on commercial surrogacy

Section 10 of the Act expressly prohibits commercial surrogacy arrangements, where the surrogate is paid a fee for carrying the child. Breaching this provision can result in severe penalties, including fines and even imprisonment.

Reasonable costs

As noted above, someone involved in altruistic surrogacy may still receive support from the intended parents for the costs involved in acting as a surrogate. Reasonable costs that may be reimbursed include:

• medical expenses (such as IVF, antenatal care, and delivery)
• travel and accommodation related to medical appointments
• psychological counselling
• legal advice
• loss of income if the surrogate is unable to work due to medical reasons

Legal requirements

In Queensland, an agreement must meet several strict requirements to be legally enforceable. The key provisions are outlined below:

Eligibility of the intended parents

Under section 14 of the Act, intended parents under a surrogacy agreement must:

• be at least 25 years old (unless there are exceptional circumstances), and
• demonstrate a medical or social need for surrogacy (such as infertility, same-sex couples, or single parents unable to safely carry a pregnancy).

Eligibility of the surrogate

The surrogate must:

• be at least 25 years old;
• have previously given birth to at least one child (this is intended to ensure that the surrogate understands the physical and emotional implications of pregnancy); and
• have no genetic link to the child in gestational surrogacy arrangements.

Counselling and advice

Both the intended parents and the surrogate must undergo independent counselling and obtain legal advice before entering into a surrogacy agreement. These steps are critical for ensuring that all parties fully understand their rights, responsibilities, and potential challenges.

Written agreement

The surrogacy arrangement must be formalised in a written agreement before the conception, signed by all parties and their legal representatives. While the agreement is not enforceable in a court of law (to protect the surrogate’s autonomy), it serves as a critical document for clarity and future reference.

Parentage orders

In Queensland, regardless of any surrogacy agreement, the person who gives birth to a child is automatically identified as the child’s parent. A significant legal step in the surrogacy process is obtaining a Parentage Order, which transfers legal parentage from the surrogate to the intended parents.

Application for a parentage order

The intended parents can apply for a parentage order to the Children’s Court of Queensland in the six months following the birth. The following conditions must be satisfied:

• the surrogacy arrangement complies with the requirements of the Act;
• the surrogate and their partner (if applicable) freely consent to the transfer of parentage; and
• the court is satisfied that the order is in the child’s best interests.

Best interests of the child

When determining whether to grant a parentage order, the court prioritises the child’s best interests, considering:

• the child’s relationship with the intended parents and surrogate;
• the intended parents’ capacity to meet the child’s needs; and
• any evidence of coercion or exploitation during the surrogacy process.

Once granted, a parentage order amends the child’s birth certificate, replacing the surrogate’s name with the intended parents’ names as the legal parents.

If the intended parents cannot satisfy the requirements to assume parentage under the Act, they can seek a parenting order under the Family Law Act 1975 for parental responsibility of the child.  

Ethical considerations and controversies

While surrogacy offers a pathway to parenthood for individuals who cannot conceive or carry a pregnancy, it raises several ethical and legal challenges:

Autonomy and exploitation

A key concern is balancing the surrogate’s autonomy with the potential for exploitation. In Queensland, the requirement for surrogacy to be altruistic helps mitigate this risk by prohibiting financial incentives that could pressure women into surrogacy.

Surrogate’s right to change her mind

The surrogate retains the right to keep the child if she changes her mind after the birth. This provision underscores the principle of bodily autonomy but can lead to complex emotional and legal disputes.

International surrogacy

Due to the limited availability of altruistic surrogate in Australia, some Queenslanders wish to use international surrogacy arrangements. However, the terms of the Act, which prohibits commercial arrangements, apply to any intended parents who live in Queensland, regardless of where the surrogate or fertility doctor reside.

Surrogacy in Queensland provides an important pathway to parenthood for individuals and couples unable to conceive or carry a pregnancy. The Act establishes a robust legal framework that prioritises the child’s best interests while balancing the rights and responsibilities of all parties involved. However, the process remains complex and fraught with ethical challenges, highlighting the need for ongoing legal and social support for all those involved. Call Go To Court Lawyers on 1300 636 846 for any legal advice and representation.