Surrogacy falls into the jurisdiction of the States and Territories, so the laws on this complex and sensitive issue differ across Australia. However, the Australian Law Reform Commission is currently undertaking an inquiry into surrogacy laws, including whether to adopt a uniform approach.
The current law in Australia
There are some points regarding surrogacy which are already common ground across Australian law, as follows:
- Commercial surrogacy is prohibited within Australia and advertising to be a surrogate is an offence;
- Altruistic surrogacy is permitted within Australia, although the rules around this differ;
- An altruistic surrogate can be paid reasonable expenses associated with the pregnancy or birth;
- The surrogate mother will automatically have parentage until this is transferred to the intended parent through a parentage order; and
- Surrogacy arrangements are not enforceable, in the sense that the surrogate mother will not be compelled to relinquish parentage and the intended parents will not be compelled to take the child.
However, there are also differences between the jurisdictions, such as:
- The minimum ages of the surrogate mother and the intended parents;
- In Victoria and Western Australia, it is necessary for the intended mother to be unable to conceive a child or unable to give birth to a child for medical reasons;
- In Western Australia, the intended parent/s cannot be single men or a homosexual couple; and
- In the Australian Capital Territory, same-sex couples can only be intended parents if one of them is the child’s genetic parent.
The law in Western Australia
Aside from some of the differences already noted above, in Western Australia it is necessary for a surrogacy arrangement to be approved by the WA Reproductive Technology Council. The Council can only give approval if, before the pregnancy:
- The surrogate mother has previously given birth to a live child, unless the Council is satisfied that exceptional circumstances exist;
- The arrangement is set out in a written agreement; and
- At least three months before the approval is given, the Council is satisfied that each party has undertaken counselling, been assessed by a clinical psychologist, received independent legal advice and been assessed as medically suitable by a medical practitioner.
The intended parents can apply to the Family Court of Western Australia for a parentage order between 28 days and six months after the child is born.
Before the Court makes a parentage order, it must be satisfied of various conditions, including that:
- The surrogate parent freely consents to the making of the order;
- The child is in the day-to-day care of the intended parents; and
- It is in the best interests of the child to make the order.
International commercial surrogacy
Due to the domestic restrictions on surrogacy and a shortage of women willing to be altruistic surrogates, some people in Australia are still resorting to international commercial surrogacy to become parents.
In the 2022 financial year, there were 213 applications for Australian citizenship by descent relating to children born through international surrogacy arrangements, including 99 from the USA, 49 from Ukraine and 21 from Canada.
It is currently illegal for residents of New South Wales, the Australian Capital Territory and Queensland to engage in commercial surrogacy overseas. However, we are not aware of any cases where this has been prosecuted.
Under the current law, the intended parents in an international commercial surrogacy will not be able to obtain a parentage order or declaration of parentage in Australia, which can impact issues such as inheritance and child support.
However, courts with family law jurisdiction can still make parenting orders in the best interests of a child, including regarding who the child should live with and who should be able to make important decisions about the child.
This is what happened in the West Australian case of Farnell & Anor and Chanbua (2016) FLC 93-700, which was the subject of publicity at the time. Twins were born in Thailand through a commercial surrogacy arrangement. The male twin, Gammy, who had Down Syndrome, remained in Thailand with the surrogate mother. The female twin, Pipah, was brought to Australia to live with the intended parents, one of whom was a convicted sex offender. The Department of Child Protection, the Australian Human Rights Commission and the Attorney General for Western Australia intervened in the proceedings regarding what parenting orders to make in the best interests of Pipah.
Public policy considerations
There are various public policy considerations that need to be balanced in making laws about surrogacy.
While some may be concerned about the exploitation of women in surrogacy arrangements, others consider that women should be free to choose to be surrogates –including for remuneration.
There also needs to be consideration of the human rights of children born through surrogacy, and whether the law in states like Western Australia should progress from having restrictions against same-sex couples being intended parents.
The Inquiry
In particular, the Australian Law Reform Commission has been asked to consider:
- “How to reduce barriers to domestic altruistic surrogacy arrangements in Australia, including by ensuring surrogates are adequately reimbursed for legal, medical and other expenses incurred as a consequence of the surrogacy;
- How surrogacy arrangements made outside of Australia should be addressed by Australian law;
- What is the appropriate recognition of legal parentage in Australia for children born of surrogacy overseas, and how may citizenship, visa and passport requirements for children born of surrogacy overseas be aligned;
- The information that should be available to children born from surrogacy arrangements, including what information should be included on a child’s birth certificate in order to meet Australia’s human rights obligations under the Convention on the Rights of the Child.”
The final report is due by 29 July 2026.
About the Author: Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible but also has experience in court proceedings.
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