Surrogacy is when a woman (known as the surrogate or gestational carrier) carries and gives birth to a baby for someone else. It’s an option for people facing medical infertility, same-sex couples, or solo parents. In Australia, though, the rules around surrogacy can be a bit of a maze, and they vary from state to state. Understanding the difference between altruistic and commercial surrogacy — and what’s actually legal where you live — is really important before getting started.

Types of Surrogacy: Commercial vs. Altruistic

Surrogacy arrangements fall into two categories: commercial surrogacy and altruistic surrogacy. Each has distinct legal implications.

Commercial Surrogacy in Australia

Commercial surrogacy is when a surrogate is paid more than just her medical and pregnancy-related costs — in other words, there’s extra financial compensation involved. This form of surrogacy is illegal in Australia. Intended parents seeking to pay a surrogate must look overseas, where commercial surrogacy is allowed (e.g., in countries like the United States and Ukraine). However, engaging in commercial surrogacy abroad can pose legal risks and ethical concerns, especially for Australian residents.

Altruistic Surrogacy in Australia

Altruistic surrogacy is the only legal form of surrogacy in Australia. Here, surrogates can only be reimbursed for reasonable out-of-pocket expenses like medical costs, travel, and lost income due to pregnancy-related complications. Finding a surrogate in Australia requires navigating these legal restrictions, where payment is not allowed beyond these costs.

Gestational Carrier vs. Traditional Surrogacy

Another important distinction is between a gestational carrier and a traditional surrogate.

  • Gestational carriers carry a pregnancy created with the intended parents' egg and sperm (or that of a donor), meaning the surrogate has no genetic relation to the child.
  • Traditional surrogates use their own egg to conceive the baby, making them biologically related to the child.

In Australia, most surrogacy arrangements involve gestational carriers, as traditional surrogacy carries additional legal and emotional complexities. These arrangements require careful attention to parental rights, which is why gestational surrogacy is often the preferred route.

Surrogacy Laws in Australia: A State-by-State Breakdown and Relevant Legislation

Surrogacy laws are governed at the state and territory level in Australia, meaning that each region has specific rules and regulations. Below is an overview of surrogacy laws in different states, along with links to relevant legislation.

The Australian Law Reform Commission Inquiry

The Australian Law Reform Commission (ALRC) is currently reviewing surrogacy laws across Australia. The inquiry focuses on whether the laws should be harmonised to create a more consistent legal framework. This includes examining the rights of the surrogate, the intended parents, and the child, with a view to streamlining surrogacy processes and ensuring clearer protections for all parties involved.

Finding a Surrogate in Australia

As commercial surrogacy is illegal in Australia, finding a surrogate can be challenging. Many intended parents connect with potential surrogates through personal networks, online communities, or surrogacy agencies. A bit of a sticking point is that in many states, advertising for a surrogate isn’t allowed — which can make the process feel even more challenging.

If you're interested in surrogacy, it’s highly recommended to consult with legal professionals or agencies that specialise in reproductive law to help you navigate the complex regulations.

Final Thoughts on Surrogacy in Australia

Surrogacy offers an incredibly meaningful path to parenthood, especially for those who’ve run out of other options. But as with anything this big, the legal side can get a bit complicated — particularly around reimbursement rules and state-by-state regulations. That’s why it’s so important for intended parents and surrogates to work within the legal framework to keep everything safe, ethical, and above board.

And keep your ears open — the ALRC (Australian Law Reform Commission) is currently reviewing surrogacy laws, which means changes might be on the way, which will, hopefully, simplify the surrogacy process and better protect all parties involved.