Surrogacy is a form of assisted reproductive treatment (ART) in which a woman conceives and carries a child in her uterus for another person or couple, and then surrenders the child to that person or couple.
Surrogacy arrangements are complex and involve medical, emotional, financial and legal issues. More Australians are considering surrogacy as a means to having a child because there is a decline in the number of children available for adoption, whereas they can access assisted reproductive treatment (ART).
A surrogate mother is someone who conceives, carries and gives birth to a child for another person or couple. The surrogate mother agrees to hand over the child to that person or couple after the birth.
For surrogacy in Australia, a surrogate mother must not have any genetic link to the child she carries for the other parent or parents. This means her egg may not be used in the surrogacy arrangement. The child’s genetic mother and genetic father (the mother and father for whom the surrogate is becoming pregnant) or a donor provide the egg and sperm used to form the embryo. This embryo is then transferred to the womb of the surrogate mother.
In some cases, a donor egg may be used in conjunction with the genetic father’s sperm to form the embryo that is transferred to the surrogate mother. Donor sperm may also be used in conjunction with the genetic mother’s egg to form an embryo for transfer to the surrogate mother.
Within Australia, only altruistic surrogacy is allowed. It is illegal to pay a surrogate, beyond medical costs and other out-of-pocket expenses.
Surrogacy is not common when compared with other forms of ART. A surrogacy arrangement could be considered if:
- A woman is unable to become pregnant as she may have had a hysterectomy or is missing part of her uterus, uterine lining, ovaries or other parts of the genital tract.
- A woman may have a health condition that makes pregnancy dangerous or she may not be able to carry a baby to term.
- A couple in a male same-sex relationship may wish to have a child using their sperm.
- A man may wish to have a child, but he does not have a partner.
- A woman who has embryos in storage with her male partner dies and he wishes to use the embryos to have a child.
Issues when considering surrogacy
There are a number of medical, emotional, financial and legal issues that need to be considered when making a surrogacy arrangement. There are also issues involved once the surrogate mother gives birth and hands over the child. Visit the Victorian Assisted Reproductive Treatment Authority (VARTA) website for information about these issues.
Key factors for a positive surrogacy arrangement
Factors that can contribute to a positive outcome from a surrogacy arrangement include:
- Minimising risk factors – such as having stable mental and physical health, a positive life situation and a supportive partner
- Clear and open communication between all parties
- Clear boundaries and realistic expectations between all parties
- Knowledge of the medical process (for all involved parties), including being realistic about the timeline (it could be up to 12 months before embryo transfer even occurs)
- Realistic expectations about the emotional responses and reactions that may occur during the process. Emotions should be managed with care and sensitivity (anxiety, grief, guilt and disappointment and are all common feelings)
- Discussions between all parties regarding the fair and reasonable payment of the expenses of the surrogate (including what expenses will be covered)
- Genetic (or commissioning) parent(s) should budget for medical, counselling and legal costs
- Agreement on a pregnancy and birth plan – all parties should be comfortable with the plan but the birth mother has the right to manage her own pregnancy, despite what may be agreed to in the surrogacy arrangement.
All surrogacy arrangements in Australia must be altruistic, which means that the surrogate does not receive financial compensation beyond the reimbursement of medical and other reasonable expenses.
Most Australian states have specific legislation that outlines the requirements for surrogacy. In the absence of legislation, states and territories are required to abide by national ethical guidelines issued by the National Health and Medical Research Council (NHMRC).
Check with your local in vitro fertilisation (IVF) clinic or legal advisor for the current surrogacy legislation in your state or territory. There is also information available on each state’s legal position on altruistic surrogacy.
Surrogacy legislation in Victoria
Under the Assisted Reproductive Treatment Act 2008, there are requirements are as follows.
The genetic (commissioning) parent(s) must be infertile or unable to carry a baby or give birth, or there is a likely medical risk to the mother or baby if pregnancy is carried out.
- Must be at least 25 years old
- Must have previously been pregnant and given birth to a live child
- Must not use her eggs in the surrogacy arrangement.
All parties, including the genetic (commissioning) parent(s), the surrogate and the surrogate’s partner (if they have one), must:
- Undergo a criminal record check and a child protection order check
- Undertake counselling and obtain independent legal advice.
The medical risks of surrogacy
There are certain medical risks involved with surrogacy. These risks are similar to those that may be experienced with all other methods of assisted reproductive treatment. These may include:
- Effects on the child born as a result of the treatment – IVF treatment has a greater chance of producing multiple births, which increases the chance of a premature birth and a baby that is below the normal birth weight.
- Effects on the egg provider – there can be reactions to fertility drugs, including hot flushes, feelings of depression or irritation, headaches and restlessness. There is also a small risk of ovarian hyper-stimulation syndrome (OHSS) occurring, which can cause stomach pains, nausea, vomiting, shortness of breath and faintness. This condition is extremely rare.
- Effects on the surrogate – there are the usual risks associated with any pregnancy and birth. These risks are increased with the age of the surrogate.
To minimise the chances of the transfer of disease and to increase safety, embryos are quarantined for six months (although this time period may vary from clinic to clinic). At the end of this period and before proceeding with the embryo transfer, the screening for infections or diseases is repeated.
For more detail about the risks involved in surrogacy, consult your fertility specialist.
Where to get help
- Your doctor
- An IVF clinic in your state or territory
- Victorian Assisted Reproductive Treatment Authority (VARTA) Tel. (03) 8601 5250
- Surrogacy Australia Tel. 0402 786 210
Things to remember
- Surrogacy is not a simple alternative to having a child.
- The process of surrogacy and surrounding issues are complex.
- Surrogacy legislation in Australia may vary from state to state.
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This page has been produced in consultation with and approved by:
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Victorian Assisted Reproductive Treatment Authority
Last reviewed: October 2012
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