• 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.
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).

Surrogate mother

A surrogate mother is someone who conceives, carries and gives birth to a child for another person or couple (intended parents or commissioning parents). The surrogate mother agrees to give the child to that person or couple after the birth.

In most parts of Australia including Victoria, a surrogate mother must not have a 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 provides 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 with the genetic father’s sperm to form the embryo that is transferred to the surrogate mother. Donor sperm may also be used with the genetic mother’s egg to form an embryo for transfer to the surrogate mother. A donor egg and donor sperm or a donated embryo can also be used.

Within Australia, only altruistic surrogacy is allowed. It is illegal to pay a surrogate, beyond medical costs and other out-of-pocket expenses.

Choosing surrogacy

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 gives the child to the intended parents. Visit the Victorian Assisted Reproductive Treatment Authority (VARTA) website for information about these

Achieving 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 a year before embryo transfer 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 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.

Surrogacy legislation

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, requirements are that 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.

Also, the surrogate:
  • 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.
NOTE: It is preferred that the surrogate has already completed her family, but this is not a legal requirement.

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.
Some clinics also require the donor involved in the arrangement to comply with these two requirements.

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.
The transfer of human immunodeficiency virus (HIV) or hepatitis is also a risk, but this is usually quite rare. To eliminate this risk, mandatory screening of everyone involved in surrogacy is required.

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

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.
  • Altruistic surrogacy within Australia, Surrogacy Australia. More information here.
  • Surrogacy – frequently asked questions, Victorian Assisted Reproductive Treatment Authority (VARTA). More information here.
  • Sullivan EA, Wang YA, Chambers G, 2010, Assisted reproductive technology in Australia and New Zealand 2008, Australian Institute of Health and Welfare, Australian Government. More information here.
  • Assisted Reproductive Technology and Adoption: Position Paper Three – Surrogacy, 2005, Victorian Law Reform Commission, Melbourne. More information here.

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This page has been produced in consultation with and approved by: Victorian Assisted Reproductive Treatment Authority

Last updated: October 2012

Page content currently being reviewed.

Content on this website is provided for education and information purposes only. Information about a therapy, service, product or treatment does not imply endorsement and is not intended to replace advice from your doctor or other registered health professional. Content has been prepared for Victorian residents and wider Australian audiences, and was accurate at the time of publication. Readers should note that, over time, currency and completeness of the information may change. All users are urged to always seek advice from a registered health care professional for diagnosis and answers to their medical questions.