Surrogacy

Surrogacy explained

Understanding surrogacy

Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended or commissioning parent(s)). Most commonly, surrogacy involves IVF in which embryos are created in a lab and transferred into the surrogate. In traditional surrogacy artificial insemination is used.

The chance of having a baby through surrogacy depends on a range of factors, including:

• the age of the person providing the egg or sperm
• the age of the surrogate
• the lifestyle of the surrogate and egg or sperm providers
• the quality of the embryo which is transferred to the surrogate.

Surrogacy arrangements are medically, financially, emotionally and legally complex. The laws affecting surrogacy vary between Australian states and territories, and also internationally. It is important to seek local independent legal advice about your surrogacy arrangements.

Types of surrogacy

Victorian fertility clinics are only permitted to practice gestational surrogacy. Surrogacy arrangements must be altruistic in Australia.

Surrogacy type: gestational vs traditional

Gestational surrogacy

Traditional surrogacy

In gestational surrogacy the surrogate’s egg is not used in conception, so the surrogate (gestational carrier) has no genetic link to the baby and is not the biological mother. The embryo transferred into the surrogate may be created using the intended parents’ sperm and egg, or donor embryos may be used.  Status of gestational surrogacy:  Practiced by registered fertility clinics in Victoria.

In traditional surrogacy an egg from the surrogate is used. Fertility treatment, either artificial insemination or IVF, is used with the intended father’s sperm.  In traditional surrogacy, the surrogate carries the pregnancy and gives birth to a child that they are genetically related to. Status of traditional surrogacy: Not practiced by registered fertility clinics in Victoria due to legal requirements. Under Victorian law, it is possible to procure a traditional surrogacy arrangement using home insemination.

Surrogacy in Australia

Surrogacy arrangements in Australia offer many benefits compared to those overseas. In Australia, there is a high standard of regulated healthcare and  legal protections which ensure the surrogate is known to the intended parents and the child. Surrogacy in Australia also poses fewer legal challenges regarding immigration, citizenship, and recognition of parentage. Additionally, if donor gametes are required there is an increased likelihood of the donor’s identity being available to the child. This can be beneficial for a range of reasons, including for the exchange of medical information later in life.

Am I eligible - surrogate

Under the Assisted Reproductive Treatment Act 2008, to be eligible to receive treatment as a surrogate from a registered fertility clinic, a surrogate must:

• be at least 25 years old
• have previously been pregnant and given birth to a live child
• not use her own eggs in the surrogacy arrangement
• not be paid other than being reimbursed for expenses.

Surrogates are preferably:

• 25-40 years old already mothers who have finished their family
• both physically and mentally healthy and leading a healthy lifestyle
• motivated by a desire to help others
• prepared to be identified to the child as required by Victorian legislation.
• responsible and settled. It is advisable that a surrogate's life is stable with a good support network. Exiting stressors (e.g. relationship or job related) are likely to be compounded by the demands of pregnancy.
• All parties, including partners (if any) must also undertake counselling and obtain independent legal advice.

Am I eligible – intended parent(s)

Intended parent(s) can be eligible to undertake a surrogacy arrangement in Victorian fertility clinics if:

• they are infertile or unable to carry a baby or give birth
• there is a likely medical risk to the mother or baby if the intended mother attempted to become pregnant herself.

There are a number of reasons why people may be considering surrogacy, such as:

• A woman is unable to become pregnant or carry a baby for medical reasons. For example,
  • she may have had surgery to remove her uterus (hysterectomy)
  • is missing part of her uterus or the lining of her uterus has been damaged
  • pregnancy may be a risk to her or the child’s health due to a medical condition (e.g. heart problems, cystic fibrosis)
  • she may have experienced multiple miscarriages
  • repeated IVF attempts have failed.
• A same-sex couple (male or female) or individual may want to have a child conceived using their own sperm or eggs and donor sperm or eggs.
• A couple who are involved in an IVF treatment program may have embryos in storage and, if in the event that the woman dies, the male partner may wish to commission a surrogate to carry and give birth to a child.

Victorian surrogacy process

The process outlined below provides a guide to surrogacy arrangements in Victoria. There is some degree of flexibility, depending on your fertility specialist and the clinic you attend.

1. Considering surrogacy

Surrogacy involves a number of complex legal, financial, medical, practical and emotional considerations.

Surrogacy arrangements can be expensive. It is illegal for a surrogate to be paid or gain material benefit from a surrogacy arrangement. However, reasonable expenses and costs (medical, legal, counselling and travel expenses incurred as a result of the pregnancy and birth) should be covered by the intended parent(s). All parties should agree on the reasonable expenses.

Medicare does not currently subsidise the costs of surrogacy in Australia. This is largely due to the inability of surrogates to satisfy the eligibility criteria for Medicare which states that a treating doctor must declare that the procedure is ‘medically necessary’ for the woman undergoing treatment which, in this case, is the surrogate. This means costs for treatment are passed on to the intended parent(s). Refer to clinic websites for more information about costs.

 The medical risks involved in surrogacy are similar to the risks of other fertility treatments, including:

• Effects on the egg provider. The woman who receives fertility drugs to stimulate the production of eggs may experience side effects, including hot flushes, feelings of depression or irritation, headaches and restlessness. There is also the small risk of ovarian hyper-stimulation syndrome (OHSS), which can cause stomach pains, nausea, vomiting, shortness of breath and faintness. 
• Effects on the surrogate. Pregnancy and birth associated risks include the development of high blood pressure and gestational diabetes, bleeding, and needing a caesarean section. Risks increase with the age of the surrogate.
• Other. There is the rare risk of transfer of HIV and/or hepatitis. To eliminate this risk, mandatory screening of everyone involved in surrogacy is required. To enhance safety, embryos may be ‘quarantined’ for six months (depending on your clinic), at the end of which, the people who provided the gametes have repeat blood tests.

For more detail about the medical risks involved in surrogacy, please consult your doctor or fertility specialist.

2. Getting started

For intended parents considering surrogacy, there are a number of ways to get started, beginning with an initial consultation to decide if surrogacy is the best option for you.

• talk to your GP who may refer you to a fertility specialist
• contact a registered fertility clinic to organise a fertility specialist consultation
• ask your current fertility specialist.

Intended parent(s) should also consider:

• letting family/friends know that surrogacy is your only option
• asking family or friends for help
• seeking a surrogate online (through surrogacy support groups or online forums). It is illegal to publish an advertisement or notice; or attempt to publicly seek a surrogate. Fertility clinics cannot advertise on your behalf.

Women wanting to be a surrogate should know that it is illegal to publicly indicate willingness to act as a surrogate.

3. Medical assessment

Both the surrogate and intended parent(s) need to undergo a medical assessment with a fertility specialist. The consultation includes:

• checking eligibility and medical suitability of the surrogacy arrangement
• blood tests to check for infection including Hepatitis and HIV
• discussing the medical risks.

4. Counselling

All parties, including the intended parent(s), surrogate and surrogate's partner (if any) must undertake counselling (separate and joint sessions) and an independent psychological assessment. If donor gamete(s) are used, the donor and donor’s partner (if any) will also have to undertake counselling. This allows an opportunity to:

• discuss the advantages and disadvantages of surrogacy
• explore potential issues which may arise
• ensure everyone feels comfortable to go ahead.

You can find out more details about counselling session discussions from ANZICA counselling guidelines.

5. Get independent legal advice

Surrogacy raises a range of legal issues. While there is no formal requirement for separate legal advice, a conflict of interest may arise if one lawyer advises all parties. All parties entering a surrogacy arrangement in Victoria need to do so with full knowledge of the consequences should a dispute arise. You should receive legal advice on the following matters:

• legal status of the child when born
• need for the intended parent(s) to apply to the court for a substitute parentage order
• timelines for making an application
• arrangements if there is a medical emergency for the child.

In surrogacy arrangements it is important to:

• be aware of and understand the personal and legal consequences
• be able to make informed decisions about proceeding
• be prepared for consequences if the arrangement does not go ahead as planned.

6. Write a surrogacy agreement

A surrogacy agreement helps formalise consensus on issues and can be useful for demonstrating informed consent or resolving disputes if they arise later in the process. Your counsellor or legal practitioner can help in drawing up documentation.

When establishing a surrogacy arrangement, all parties should agree on the surrogacy costs that are to be reimbursed to the surrogate. The surrogacy agreement should reflect these decisions, and the expenses and costs that will be reimbursed to the surrogate should be clearly worded.

7. Apply for a surrogacy arrangement

In Victoria, the Patient Review Panel (PRP) must approve the surrogacy arrangement before it proceeds. Applications to the panel are initiated by lodging an application form, which is to be completed by all parties including the intended parent(s), the surrogate and her partner (if any). Where a donor is used, the donor(s) and their partner (if any) should also complete the form.

On receiving the application form, the PRP will promptly notify the applicant of the hearing date. PRP hearings are held with as little formality as possible. Hearings are held in confidence and are closed to the general public. To date, all applications for surrogacy have been approved.

The PRP may approve a surrogacy arrangement if satisfied that all Victorian requirements are satisfied.

8. Apply for a substitute parentage order

For Victorian surrogacy arrangements

In Victoria, as the birth mother, the surrogate (and partner, if any) will legally be recognised as the parent(s) of the child and recorded on the birth certificate. The intended parent(s) can apply to the Supreme or County Court for a substitute parentage order if the child was conceived as a result of a treatment procedure in Victoria and if the intended parent(s) lives in Victoria at the time of making the application. A substitute parentage order will name the intended parent(s) as the legal parent(s). An application for a substitute parentage order must be made no less than 28 days and no more than six months after the child is born. The court may make a substitute parentage order if it is satisfied that:

• making the order is in the best interests of the child
• if the surrogacy arrangement was organised with the assistance of a Victorian registered fertility clinic, that the PRP approved the surrogacy arrangement before it was entered into
• if the surrogacy arrangement was organised without the assistance of a clinic, the surrogate mother was at least 25 years of age before entering the surrogacy arrangement, and both counselling and information about the legal consequences of making a substitute parentage order were obtained
• the child is living with the intended parent(s) at the time the application is made
• the surrogate (and her partner, if any) did not received any material benefit from the surrogacy arrangement
• the surrogate (and her partner, if any) freely consents to the order.

For interstate surrogacy arrangements

As of 2014, children born in Victoria through an altruistic surrogacy arrangement in another Australian state or territory (except the Northern Territory) can have their parentage legally recognised.

Victoria's Registrar of Births, Deaths and Marriages can amend the birth registration of a child conceived under an interstate surrogacy arrangement, once certain requirements are met. These requirements include a Victorian registration order being made by the County Court or Supreme Court, and a corresponding surrogacy parentage order being obtained from the other Australian state or territory. The Registrar will then change the child's birth record to name the intended parent(s) as the child's parents and issue a new birth certificate. 

The legislation ensures that Victorian legal requirements for surrogacy and assisted reproductive treatment cannot be ignored. Parents seeking a Victorian court order for surrogacy arrangements entered into after Victorian surrogacy laws were in place will need to show that they had a genuine connection to the state or territory in which the child was conceived and that they did not move to that location in order to avoid Victorian surrogacy laws. For surrogacy arrangements entered into before Victorian surrogacy laws were in place, parents will only need to show that the order is in the best interests of the child.

International surrogacy

International surrogacy process

1. Considering surrogacy

VARTA strongly encourages people considering surrogacy to make these arrangements within Australia. The unregulated environments that occur overseas can pose potentially serious risk or disadvantage for all parties involved in surrogacy arrangements – in particular for resulting children.

Given the many benefits of Australian arrangements, prospective parents should consider surrogacy locally first. It is important for you to seek as much information as possible before getting started.

While treatment may sometimes appear cheaper overseas, it is important to consider all financial implications including travel and medical insurance, clinic costs and unexpected expenses. These may include:

• costs associated with delays and complications
• additional medical expenses not covered as part of the treatment
• administrative costs for citizenship and immigration once the child is born
• extended stays if immigration issues are protracted. 

If there is a multiple pregnancy there is a higher chance that the babies could be born prematurely and may need neonatal intensive care for a prolonged period. You may want to seek specialist financial advice about this possibility.

2. Getting independent legal advice

It is essential to find out about the laws on surrogacy in your state or territory. While Victorian law does not prevent residents from travelling overseas for surrogacy (gestational or traditional), it is strongly advised that you seek independent specialist legal advice before you enter into an international surrogacy arrangement. It is important that the legal issues of immigration, citizenship, and recognition of parentage are clarified for both your country of origin and the country where treatment is sought.

3. Have a fertility assessment

Before undertaking international surrogacy arrangements, intended parent(s) should have a thorough assessment by a fertility specialist to understand if it is the best option. Men (single or same-sex couples) should have a sperm test performed before starting treatment.

Local fertility treatment may be suitable depending on individual circumstances.

4. Choosing an overseas clinic and applying for approvals if needed

In deciding where to seek treatment overseas, it is important that you fully understand the clinic's or agency's practices, including:

• Accreditation. How is the clinic certified and what are the qualifications of the staff who work there?
• Recruitment. How does the clinic recruit and select surrogates (including medical and psychological screening)?
• Care for surrogates. This includes their policies on informed consent, counselling, pregnancy and delivery care, as well as verified payment.
• Identification of gametes/embryos. How will they ensure that the correct embryos are transferred? What precautions and procedures are in place to ensure accurate recording and labelling?
• The number of embryos to be transferred. There are much higher risks to the babies of miscarriage, premature birth, illness, disability and even death if more than one embryo is transferred.
• Storage and transport of eggs, sperm or embryos. If you have eggs, sperm or embryos in storage in Victoria and wish to move them overseas, you will need to contact the clinic where your eggs, sperm or embryos are stored to arrange transport to another country. If you would like to export donor eggs, donor sperm or embryos formed from donor eggs or sperm, you will need to apply to VARTA for approval to export donated material to another country. VARTA must be able to determine that the way in which the eggs, sperm or embryos will be used overseas is consistent with the way in which they could be used in Victoria before approval is granted.
• Neonatal care. What medical care is available if your baby needs it?
• Information about the surrogate and any egg/sperm donors, including medical history. This is likely to be very important information for the child.
• Contact with the surrogate and any egg/sperm donors. What provisions exist for further information to be provided about the surrogate, or for a relationship to continue between the intended parent(s), the child and the surrogate, egg or sperm donors, if this is wanted by all parties?

5. Write a surrogacy agreement

The potential for information exchange, and or a continuing relationship, between the parties will depend on where the surrogacy arrangement takes place and the agency organising it.

It is recommended that intended parent(s) ask agencies for information about the surrogate (and donor, if any), including medical history, and whether ongoing contact is possible and document arrangements in a surrogacy agreement. Surrogacy support organisations may offer advice for establishing a successful relationship with a surrogate (and donor, if any) internationally.