Surrogacy has long been a contentious issue. While some would argue that a woman bearing a child for someone else is the ultimate sacrifice, others see it as being unethical and detrimental to the child denied their birth parents, at Foye Legal we understand the emotional toll this decision & process can take.
The laws surrounding surrogacy differ in many countries and even our own here in Australia. This information will focus more on information for New South Wales. When reviewing we acknowledge and agree on commercial surrogacy being illegal, where a woman is paid to have someone else’s child. Altruistic Surrogacy on the other hand, where there is no monetary gain for the birth mother and it is a selfless act, is allowed in many countries, including Australia.
But while not illegal, the intended parents of children born through this form of surrogacy have faced an uphill battle getting full parenting rights. Until recently, the law in NSW assumed the birth mother (and her partner if one existed) was the legal parent, so the surname on the birth certificate was hers.
This meant that the parents actually raising the child faced problems enrolling them in school, making decisions about their health care, gaining access to services like Medicare and in some instances the child was denied legal rights, such as access to inheritance.
The only way parents could gain full parenting rights was to apply to adopt the child; both an expensive and lengthy process.
However, due to the Surrogacy Act being passed in NSW, it now allows the intended parents of a child born through surrogacy to apply to the NSW Supreme Court for a parentage order thirty days after the birth.
If it is granted, they gain full parenting rights, and their name on the child’s birth certificate.
To be eligible:
It also means the Surrogate Mother is now legally entitled to have her expenses covered by the intended parents, including medical, legal and counselling bills. The genetic information of the child must be stored on a central register, as it is for children conceived through assisted reproductive technology like IVF.
Understandably, finding a woman who will selflessly agree to carry someone else’s child is difficult. One law that has received criticism is that it has now become a criminal offence to engage a commercial surrogate mother overseas. Some states in America, most notably California, allow commercial surrogacy. That’s no longer an option for NSW residents.
But the changes are positive for kids born through altruistic surrogacy and their intended parents.
When you’re down, you need the right people on your side to help you stand back up. If you’re considering the Surrogacy path, Foye Legal are ready and willing to fight for your rights and make sure you get everything you deserve.
Seeking legal assistance early gives you control over your situation, helping you avoid complications and manage costs effectively. This guide provides practical tips, checklists, and key insights to help you confidently navigate legal processes to secure the best possible outcome.
Your first consultation is vital in safeguarding your interests and laying the foundation for the best possible outcome. At Foye Legal, we value the trust you place in us and are committed to providing clarity, strategy and unwavering support from day one.
Yes, surrogacy is legal in NSW, but it must comply with the Surrogacy Act 2010 (NSW). Altruistic surrogacy (where the surrogate is not paid beyond reasonable expenses) is permitted, while commercial surrogacy (paying a surrogate for carrying the child) is illegal.
To be legally recognised, a surrogacy arrangement must be altruistic, involve written agreements signed by all parties, and meet specific criteria under the Surrogacy Act 2010. Both intended parents and the surrogate must obtain independent legal advice and psychological counseling before entering the agreement.
After the birth of the child, the intended parents must apply to the Supreme Court of NSW for a parentage order. This transfers legal parentage from the surrogate (and their partner, if applicable) to the intended parents. The court requires evidence that the arrangement complies with legal and procedural requirements.
A surrogate must be at least 25 years old, have previously given birth to a child, and be medically and emotionally suitable. Surrogates cannot be paid beyond reasonable expenses incurred during the surrogacy process.
Reasonable expenses that can be reimbursed include medical costs, travel expenses, legal fees, and loss of income during the pregnancy. These must be agreed upon in writing before the surrogacy arrangement begins.
For more detailed guidance on surrogacy laws in NSW, contact Foye Legal to ensure your arrangement complies with all legal requirements.
Send us your enquiry here or give us a call on 1800 996 994
"*" indicates required fields
3/1 MEMORIAL DRIVE SHELLHARBOUR CITY NSW 2529
LEVEL 3, 63 MARKET STREET WOLLONGONG NSW 2500
contact us to make an appointment
3/1 MEMORIAL DRIVE SHELLHARBOUR CITY NSW 2529
LEVEL 3, 63 MARKET STREET WOLLONGONG NSW 2500
contact us to make an appointment
Keep up to date with the latest insights and news from Foye Legal
