Surrogacy is a deeply personal and legally complex process. For Australians embarking on this journey—whether domestically or internationally—a well-drafted surrogacy agreement is essential. This document protects all parties and sets out the expectations and responsibilities. Here’s what you need to know as an intended parent in Australia.
What is a Surrogacy Agreement?
A surrogacy agreement is a written agreement between the intended parents and the surrogate. It outlines the roles, responsibilities, and expectations of everyone involved throughout the surrogacy journey. While it is not binding, this agreement is a vital step in ensuring all parties are on the same page from the outset, helping prevent misunderstandings or disputes later.
Why is it important?
Surrogacy agreements provide clarity and help set expectations. They confirm who will be the legal parents of the child, outline the surrogate’s rights during the pregnancy, and address how medical, financial, and logistical matters will be handled. Most importantly, they help the surrogate and intended parents understand their rights and obligations.
Domestic vs. International Considerations
While all surrogacy agreements aim to establish a clear understanding between parties, the differences between domestic and international legal documents are significant.
Domestic Agreements: In Australia, surrogacy laws vary by state, and only altruistic surrogacy is legal. This means a surrogate cannot be paid beyond reasonable expenses. Domestic agreements must adhere to local legal requirements, which often involve court approvals and specific steps to transfer legal parentage. Agreements, apart from expense reimbursements are not binding.
International Contracts: International surrogacy is more complex, as laws vary widely between countries. Countries like the USA, Mexico and Georgia allow commercial surrogacy, allowing binding surrogate contracts. Countries like Colombia, Argentina and Canada allow altruistic arrangements for foreigners and also provide legally enforceable contracts.
Parental Recognition: While you may be recognised as a parent in the foreign jurisdiction, Australia will not define you as a legal parent automatically. There may be extra steps to secure legal recognition of parentage after returning home with the child.
Key Components of a Surrogacy Agreement
While all surrogacy agreements aim to define the roles and responsibilities of all parties, the structure and legal requirements differ considerably between domestic and international surrogacy.
Family Law Specialists from Lander & Rogers enlighten us on the essential components that should be included in a surrogacy agreement:
Domestic Agreements
In some Australian States and Territories, parties are required to enter into surrogacy agreements. However, in Victoria, written surrogacy agreements are not legally required and they are not legally binding or enforceable.
However, a written agreement between the intended parents and a surrogate can be helpful to record the parties’ intentions and ensure that all parties are in clear agreement of all terms, including the parties’ respective rights and responsibilities during the pregnancy and after the birth. This can provide certainty to the parties and avoid disputes down the track.
A surrogacy agreement should address the following matters in particular:
- expenses to be met and reimbursed;
- when and how the child will be handed to the intended parents;
- the birth plan;
- how the child will be fed (express breastmilk or formula);
- completion of Medicare forms;
- completion of all legal documents for any necessary Court application;
- contact and communication between the surrogate and the child (if any);
- what is to happen if the parties separate during the pregnancy, or after the birth, before a Substitute Parentage Order is made;
- what is to happen in the event that one or more of the parties die before a Substitute Parentage Order is made;
- what is to happen if, for whatever reason, a Substitute Parenting Order is not made – including any application for orders in the Federal Circuit and Family Court of Australia and/or adoption in the local State/Territory;
- how the parties intend to resolve any dispute(s) that may arise, for example, by way of mediation, and who bears the costs associated with dispute resolution.
Tamara Cook & Laura Villemagne-Sánchez
Accredited Family Law Specialists
Lander & Rogers
International Contracts
For Australians pursuing surrogacy abroad, agreements are subject to the laws of the country where the surrogacy occurs. Important aspects of international surrogacy agreements include:
Compensation: Unlike in Australia, some countries allow commercial surrogacy, where surrogates are compensated beyond their expenses. The agreement must specify how this payment is structured, and it must be legal under local laws.
Parentage: Ensuring that legal parentage is transferred to the intended parents in the country of birth is crucial. The agreement should include steps for securing parentage orders in the foreign country.
What should intended parents be aware of when drafting a surrogacy agreement?
Commercial surrogacy is illegal in Australia, so it is critical that any surrogacy agreement only provides for reasonable expenses to be met/reimbursed (and detail those) and not any other monetary payment.
Surrogacy laws differ among the States and Territories of Australia, so parties need to be aware of, and get advice about, the relevant laws in their particular State/Territory with respect to the rights and responsibilities of the proposed surrogate (and her partner), the intended parent(s) and any intended donor(s).
Legal advice is essential before contemplating surrogacy to ensure that parties understand everything that is involved and all of their rights and obligations.
Tamara Cook & Laura Villemagne-Sánchez
Accredited Family Law Specialists
Lander & Rogers
When to Engage a Legal Expert
If engaging in domestic surrogacy, it is vital to involve a legal expert at the very beginning of your surrogacy journey. A lawyer experienced in surrogacy law can help you draft a legally sound agreement, ensure compliance with local laws, and provide guidance on potential legal issues before they arise.
Engaging with legal counsel early also allows you to address any potential red flags in the agreement process. This includes ensuring the surrogate and intended parents are fully informed of their rights and obligations, and that both parties are supported through every step of the process.
It’s vital to engage a legal expert early in the surrogacy or egg donation journey. Doing so ensures you understand the legal framework and that everyone is on the same page about the arrangement and expectations in the future – helping avoid potential pitfalls and disputes.
Tamara Cook & Laura Villemagne-Sánchez
Accredited Family Law Specialists
Lander & Rogers
To learn more and get expert guidance from legal professionals on surrogacy and fertility law, join us at our upcoming Melbourne event. You’ll have the opportunity to hear from leading specialists, ask questions, and connect with others who share your family-building goals. Don’t miss this chance to gain the knowledge and support you need!
