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What is surrogacy? 

Surrogacy is an arrangement (often supported by a legal agreement), whereby a woman agrees to become pregnant, carry, and give birth to a child on behalf of another person, via artificial insemination, and return the baby to the intended parent(s) upon birth.  

What are the circumstances of surrogacy?  

An embryo is created using an egg and sperm produced by the commissioning parent(s), and is transferred into the surrogate. The surrogate has no genetic link to the child.  

Do surrogacies require donation of an ovum, or can a surrogate carry a child from both parents? 

Yes. Under Victorian Legislation, the surrogate’s eggs cannot be used to conceive a child. 

What sort of people use surrogates?

A person is eligible to commission a surrogate if:

• They are unlikely to, or unable to become pregnant naturally. 

• They are unlikely to, or unable to give birth to a child. 

• They are likely to place their life or health (or that of the baby) at risk if they become pregnant, carry the child, or give birth. 


What as a practitioner is the most important trait for people to have towards people with these issues?

It is important for a lawyer to be understanding and sympathetic to the circumstances, and experiences of the commissioning couple. Yet, it is also important for your lawyer to ensure the surrogacy process is legally secure and valid. 

What are the main questions people ask?

• How can I be the legal parent of the child? 

• How does the carrier relinquish all their rights to the child? 


In circumstances where same sex couples are seeking to utilise surrogacy, are there any added complications or factors?

No. Though, in these instances, it may require the genetic donation of an ovum or sperm from a separate donor. 

What about money? 

It is illegal for a surrogate mother to be paid for a surrogacy agreement. 

Though, the surrogate may be reimbursed for the prescribed costs incurred as a direct consequence of entering into the surrogacy arrangement. You may need to cover costs!


What other important things should people considering surrogacy set up?

• Wills

• Adoption 

• Reviewing financing agreements

When should a lawyer get involved in the surrogacy process? 

Prior to the surrogate becoming pregnant, a lawyer should be become involved to ensure the commissioning parents are complying with relevant legal issues and agreements. It is also important that the parties’ intention to enter into such an agreement is in writing, and signed by all parties. 

How does a person acquire parental rights to a child if their genetic material was not used within the surrogacy? 

Adoption! You may apply to the Supreme Court for a declaration of parentage post-birth of the child. 

Can a surrogate decide to keep the baby?

Technically, yes. The commissioning parents will need to be made aware of this risk before entering into a surrogacy agreement. 

However, with a signed surrogacy agreement in place prior to the birth, the surrogate will need to have good grounds to overturn the agreement. 

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