New South Wales
The New South Wales legislation guiding surrogacy arrangements are set out in the Surrogacy Act 2010, which can be found on the NSW legislation website.
Who may enter into a surrogacy arrangement
| Intended parents | Surrogate |
|---|---|
| Must be at least 25 years old | Must be at least 25 years old |
| Must be residents of NSW | Does not need to be resident of NSW |
| Does not need to have had her own child(ren) |
Requirements
- Arrangements must not be commercial, and any payment to a surrogate needs to be strictly to reimburse her for expenses connected the surrogate pregnancy.
- Both gestational and traditional surrogacy arrangements are permitted.
Enforceability
- Surrogacy arrangements made in NSW cannot be enforced anywhere in Australia
Payments in surrogacy arrangements
| Allowed | Not allowed |
|---|---|
| Intended parents must reimburse their surrogate for costs connected to the surrogate pregnancy and birth | Commercial surrogacy arrangements are prohibited in the NSW, and it is considered an offence to intentionally enter into a commercial surrogacy arrangement |
It is an offence for residents of NSW to enter into a commercial surrogacy arrangement elsewhere in Australia or internationally.
Advertising
| Allowed | Not allowed |
|---|---|
| Intended parents are permitted to advertise their need for a surrogate, so long as they have not paid a fee for the advert, statement or notice | Surrogates are permitted to advertise their desire to act as a surrogate, so long as they have not paid a fee for the advert, statement or notice |
Parentage
At birth, the surrogate is recognised as the birth mother of the child, and if she has a husband or partner they are recognised as the child’s other parent. Intended parents can apply to the Supreme Court for a Parentage Order at any time following birth, before the child turns 18.
Preconditions to Parentage Orders
For intended parents to make an application for a parentage order in NSW there are several mandatory requirements:
- The best interests of the child are paramount.
- The surrogacy arrangement must be altruistic and a pre-conception arrangement.
- The child must be under 18.
The Supreme Court also maintain discretionary preconditions:
- There must been a medical or social ground for the surrogacy arrangement.
- The surrogate and her partner consent to the parentage order application.
- The intended parents consent to the parentage order application.
- The child must be living with the intended parents.
- The surrogacy arrangement must be in writing.
- Both couples must have undergone counselling.
- Both couples must have sought legal advice.
- The birth of the child must have been registered registered.
- Information must be provided for the Central Register.