Although surrogacy has now been legal in Queensland for over 5 years, and has certainly peaked the interest of media in the past couple of years, there still seems to be a degree of public ignorance about what is legal and what is not. The confusion is not helped by the fact that each Australian State and Territory has different laws about surrogacy. In all jurisdictions (except the Northern Territory where there are no laws regarding surrogacy), there are strict regulations and eligibility requirements that must be met before a surrogacy agreement can be entered into and performed and in what situations this may be done. https://www.qld.gov.au provides the following information on the situation for surrogacy in Queensland:
The Surrogacy Act 2010 regulates surrogacy arrangements in Queensland, including transferring the parentage of a child born as a result of a surrogacy arrangement.
Under the Surrogacy Act, you can:
- enter into a non-commercial surrogacy arrangement(i.e. no money changes hands)
- pay or reimburse the birth mother’s reasonable surrogacy costs.
Under the Surrogacy Act, you can not:
- enter into a commercial surrogacy arrangement (i.e. where one party pays another)
- advertise for any surrogacy arrangement—whether you’re willing to be the birth mother or seeking someone to be a birth mother for you
- receive any fees for arranging a surrogacy.
In Queensland, any person, regardless of their relationship status, can enter into a non-commercial surrogacy arrangement. If you are the intended parent/s, you:
- may be a married or de facto couple (including same-sex de facto couples) or single
- do not need a genetic connection to the child or birth mother
- may use any method for conception, such as in-vitro fertilisation, artificial insemination, self-insemination or natural conception.
It is essential to understand that surrogacy arrangements in Queensland are not enforceable. This means that either the intending parents or the surrogate may change their mind at any time before the court makes a parentage order. If you are the birth mother, you may decide not to give up the child to the intended parents. If you are the intended parents, you may decide not to permanently care for the child. However, a court may enforce the part of the arrangement relating to paying the birth mother’s reasonable surrogacy costs in some circumstances, such as if the birth mother gave up the child to the intended parents and consented to the parentage order.
It is an offence for Queensland residents to enter into commercial surrogacy arrangements overseas. This means that a person who engages in such an arrangement can be found guilty of an offence (punishable by a fine and/or imprisonment). In some other Australian jurisdictions, it is not a crime to enter into commercial surrogacy arrangements overseas but the intended parent(s) may be unable to obtain, or have difficulty in obtaining, a parentage order due to the prohibition on commercial arrangements.
The material above should be considered as information only and should not be taken as legal advice. Any person considering entering into surrogacy is advised to obtain independent legal advice.