Surrogacy Eligibility in Australia – for Surrogates and Intended Parents​

Am I able to use a surrogate?

It’s important to ascertain which laws apply to you in the surrogacy process. As the intended parent, the laws of the State where you live in apply. For NSW this is the Surrogacy Act 2010.

The Act allows: gay couples, single men or women, Agreement need to be in writing, traditional surrogacy

If you are:

  • a woman unlikely to become pregnant, able to carry a pregnancy or give birth due to a medical condition or potential risk to herself or the baby; or
  • a couple whose multiple transfers of a genetically normal embryo have been unsuccessful; or
  • the intending parent is a single male or in a same sex male relationship

Then you are able to engage in the surrogacy process.

Can I be a surrogate?

Perhaps you are interested in being a surrogate for a family member or friend and need more information on whether you are able to be their surrogate. Maybe you are an intending parent wishing to engage someone in your circle as your potential surrogate. Or simply, you just want more information about who can actually be a surrogate.

You can be a surrogate if:

  • You are over 25 years old – There’s no maximum age but this is at the discretion of the fertility clinic, which usually will be around 52 years of age due to menopause.
  • Had your own child first with no history of pregnancy-related complications – This is not a legal requirement in NSW, but clinics will usually require this to be done first to reduce the risks associated with pregnancy. This is a case-by-case basis and is best resolved consulting with the counsellor and legal professional.
  • Are single, married or de-facto – Many surrogates are actually single. Being married can have implications on the Parentage Order. If you are going through separation, consider prioritising finalising that first. We can provide legal advice in any circumstance.

Some clinics impose their own conditions with eligibility to becoming a surrogate such as: having had an established relationship with the intended parents, gestational surrogacy only (even though traditional surrogacy is permissible in NSW), psychiatric conditions.

It’s therefore important to make sure you get all relevant information whether legal or medical before proceeding to offer yourself as a surrogate.

How do I find a surrogate?

Since commercial surrogacy is illegal in Australia, you are not allowed to advertise or pay for someone to act as a surrogate. Similarly, it is illegal in the opposite sense – a woman cannot advertise or ask for payment to act as a surrogate. Enquire around your family or friends to see if someone in your circle can be considered as a surrogate against the eligibility criteria. Nevertheless, if you are unable to find someone that you know, discussing this concern with your fertility clinic can assist you.

Cassandra Kalpaxis

Cassandra Kalpaxis