The laws concerning surrogacy within Australia are primarily State and Territory based, and vary between each continuing state and Territory. Occasionally within Australia there are no laws dealing with surrogacy. In other places, such as New South Wales and Victoria, commercial surrogacy is illegal, whereas altruistic surrogacy is not illegal. However altruistic plans are unenforceable.
Commercial surrogacy involves a payment to the surrogate mother for her services whereas altruistic surrogacy does not.
Most commonly surrogacy arrangements involve conception by way of an artificial conception treatment at an IVF Clinic in Mumbai. In Mumbai, there are no regulations concerning surrogacy within the IVF market, IVF Cost and IVF treatment for surrogacy arrangements is self regulated by the industry. The IVF treatment of the surrogate mother will involve an egg donation from someone other than herself always, and typically a sperm donation from one of the intending mother and father.
The legal issue concerning these arrangements involves who is considered to be the legal parent of the child. Under the Family Rules Act, parents of a child have parental responsibility. This entitles them to make decisions concerning the child's welfare, such as giving consent for medical procedures or enrolling the young child in a school. Under the current state of legislation in New South Wales and elsewhere in Australia, the surrogate mother and her married or de facto partner would be considered the legal mother and father of the child, regardless of the known fact that the child will not have any of their DNA, and as such they would have parental responsibility of the young child.
The Work and Western Australian have enacted laws to overcome the issue of the parentage of the child born to a surrogate mother. In both places an application can be made to a Court for an order removing the status of legal parent from the surrogate mother and her partner and conferring it upon the intending mother and father. This is analogous to adoption, although adoption orders in these circumstances are not available in places such as New South Wales. The effect of these Court orders under the Work and Western Australian laws and regulations is to confer parental responsibility upon the intending mother and father, and the surrogate mother and her partner would be left with no responsibilities in respect of the child.
A standing committee of the Attorneys General of the States and Territories and the Commonwealth is conducting an inquiry into enacting uniform laws across Australia concerning surrogacy. However, the ACT laws have been recommended as the model legislation to be adopted nationally.
For as soon as in New South Wales, the equivalent of laws to those in the Australian Capital Western and Territory Australia do not exist. This will leave the surrogate mother and her partner in New South Wales surrogacy arrangements with the status of legal mother and father, and parental responsibility. The only avenue available for the intending mother and father in New South Wales to overcome this issue would be to apply to the Family Court for orders conferring parental responsibility upon them, although this does not amount to the intending mother and father acquiring the status of legal mother and father. Practical outcomes of this include the surrogate mother and her partner potentially having a child support liability once the child is surrendered to the intending mother and father.
It is becoming increasingly common for young couples to enter into commercial surrogacy arrangements in overseas jurisdictions where commercial surrogacy is legal. California is one such jurisdiction where commercial surrogacy and arrangements firms are legal. For those couples intending to enter into overseas surrogacy arrangements, it is recommended that they seek legal advice from a family law expert in the field of surrogacy within the jurisdiction where the surrogacy agreement and IVF treatment is intended to take place. Specifically, it is recommended they enquire as to the availability of mechanisms conferring the status of legal parent and parental responsibility from the surrogate mother and her partner to the intending couple, and naming the intending mother and father on the child's birth certificate.