Will surrogates be paid in Australia? The Australian Law Reform Commission is taking a fresh look at how surrogacy is regulated in Australia, and where the current system makes things harder than they need to be.

Drawing on early consultations, research, and the experiences of people involved in surrogacy, the ALRC outlines the barriers faced by intended parents and surrogates, the inconsistencies between state and federal laws, and the areas where clearer guidance or a more modern approach would make a practical difference.

1. Surrogate shortage

Domestic surrogacy is legally available in Australia, although the ALRC notes it is often difficult to navigate in practice.

  • A shortage of available surrogates, partly because of strict eligibility rules or uncertainty about the process.
  • Complex and uneven rules across states, such as different minimum ages, different requirements for intended parents, and rules about whether a surrogate must have previously given birth.
  • Limited access to specialist support, for example only a small number of lawyers and counsellors work regularly in surrogacy.
  • A lack of coordinated professional support, as Australia does not have a UK or Canadian style surrogacy agency that provides matching, management, and guidance.

A general perception that domestic surrogacy is a slow and complicated process, particularly in places such as Victoria and Western Australia where pre-approval is required before treatment begins.

Example:
Some intended parents told the ALRC they did not know where to begin because there is no central source of reliable information. IVF clinics also reported that they spend significant time explaining state differences to patients, and that these variations can be confusing for people new to the process.

2. Being able to pay surrogates

Australian law permits the reimbursement of “reasonable expenses”, however surrogates cannot be compensated for their time, effort, or medical risk.

The ALRC highlights several issues.

  • What counts as a “reasonable expense” varies between states, leaving surrogates unsure whether items such as childcare, lost wages, transport, or extra household help will be included.
  • Surrogates can be left out of pocket when guidelines are unclear or when unexpected expenses arise late in pregnancy.
  • Reimbursement rules do not properly recognise the surrogate’s significant contribution, which includes time, emotional labour, and the medical risks associated with pregnancy and birth.
  • Confusion exists about what can be reimbursed, for example whether intended parents can cover physiotherapy, maternity clothes, doula care, or travel costs.
Example:
In some states, expenses can only be reimbursed once a surrogate has formally relinquished custody to the intended parents, a requirement that feels outdated and unnecessarily rigid.

The ALRC notes that options for reform include clearer reimbursement guidelines, a broader definition of reimbursable costs, or a structured model of compensated surrogacy.

3. Who is on the birth certificate

Legal parentage is one of the most complex parts of the current system.

  • The surrogate is the child’s legal parent at birth, and intended parents do not have automatic authority until a parentage order is granted.
  • This delay affects medical decision making, access to Medicare, passport applications, and other early administrative steps.
  • Each state has a different process for transferring parentage, including different reporting requirements, timing rules, and documentation standards.
  • International surrogacy parentage is particularly uncertain, and may not be recognised in Australia if the overseas arrangement involved payments beyond “reasonable expenses”.
  • Courts have made inconsistent rulings, which creates uncertainty about outcomes for families.
Example:
In New South Wales, the Supreme Court recently refused a parentage order because a required counselling report had not been obtained. In another case involving payments above reasonable expenses, the Family Court recognised an intended father because it was in the best interests of the child. Families returning from overseas sometimes discover that the parentage they hold in the country of birth is not recognised in Australia, which leaves them in legal limbo for weeks or months.

4. International surrogacy and Citizenship

For children born through international surrogacy, the journey home to Australia can be complex.

  • Citizenship by descent is not automatic, and requires evidence of a genetic or legal connection, which may be difficult to obtain in some countries.
  • Passport applications sometimes require the surrogate’s consent, and families can struggle to reach the surrogate once they have left the country.
  • A small number of children are at risk of statelessness if they cannot secure either Australian citizenship or citizenship in the country of birth.
  • Families may experience lengthy delays overseas while paperwork, DNA tests, or embassy assessments are completed.
Example:
Some parents rely on foreign passports and temporary visas to enter Australia, although these are not always available in every country and create considerable stress.

5. Information harmonisation

Australia does not have one unified surrogacy system, but an assortment of state, territory, and federal rules that intersect in uneven ways.

This results in:

  • Significant differences between states in eligibility, advertising rules, expenses, and parentage processes.
  • Inconsistencies between state and federal law, particularly in relation to who counts as a “parent” for citizenship, passport applications, and family law.
  • Conflicting information for professionals such as IVF clinics that operate across state borders.
Example:
The ALRC notes that IVF clinics sometimes provide incorrect advice because they assume rules are uniform. In reality, states vary on whether pre-approval is required, what age the surrogate must be, whether residency conditions apply, and other essential details.

6. What's considered criminal

Commercial surrogacy is a criminal offence in Australia, and in some states the offence applies even when the arrangement takes place overseas.

However, the ALRC raises several concerns.

  • Criminalisation has not stopped Australians from travelling overseas for commercial surrogacy, and large numbers continue to do so.
  • No one has been successfully prosecuted, which raises questions about whether the laws achieve their intended aim.
  • Criminalisation may drive arrangements underground, which reduces transparency and increases risks for everyone involved.
  • Children may be placed at a disadvantage because of the way parental recognition, citizenship, or documentation is handled.
Example:
In the Australian Capital Territory, New South Wales, and Queensland, an intended parent who undertakes a legally permitted compensated arrangement in a country such as the United States could technically be committing an offence once they return home.

7. Lack of awareness and education

The ALRC found widespread confusion about how surrogacy works in Australia.

  • Many Australians mistakenly believe all surrogacy is illegal.
  • Intended parents often feel unprepared because there is no central source of clear, practical guidance.
  • Healthcare workers can be uncertain about which person has legal authority, particularly during pregnancy and birth.
  • IVF clinics and legal professionals sometimes provide conflicting advice because they are not always familiar with the differences between state laws.
  • Only two states have issued hospital guidance for the care of surrogates and intended parents.
Example:
Without clear hospital guidance, midwives may ask intended parents for medical consent when legally this must be provided by the surrogate, or they may inadvertently do the reverse, which causes distress for both parties.