Surrogacy Lawyers Melbourne

In Victoria, surrogacy is legal only if it’s altruistic, meaning no financial gain is involved, other than covering reasonable medical expenses. Commercial surrogacy arrangements are prohibited. Both the intended parents and the surrogate must receive independent legal advice.

The Patient Review Panel will ensure that all legal requirements are met before approving the arrangement. After the birth, the County Court of Victoria will make a parentage order in favour of the intended parents if the legal requirements have been met.

A surrogacy arrangement is a legal agreement where a woman (the surrogate) carries and gives birth to a child for another person or couple (the intended parents). In Victoria, surrogacy must be altruistic, meaning no financial gain other than covering medical costs.

The arrangement involves detailed legal agreements and requires independent legal advice for all parties. The intended parents are recognised as the legal parents after the child’s birth, following a parentage order being made by the County Court of Victoria or other State or Territory court if the surrogacy arrangement is in another State or Territory.

Substitute Parentage Orders are legal orders issued by the County Court of Victoria (or other State or Territory court) following a surrogacy arrangement, that legally recognises the intended parents as the child’s legal parents. These orders are used in cases where the birth mother (surrogate) is initially recorded as the legal parent on the birth certificate.

Once the court grants a substitute parentage order, the intended parents’ names are substituted for the surrogate and the surrogate’s partner (if any) on the birth certificate, formally establishing their legal rights and responsibilities toward the child. In Australia, a substitute parentage order is usually required after a surrogacy arrangement to ensure the intended parents’ parental rights are recognised by law.

In Australia, surrogacy must be altruistic, meaning the surrogate cannot receive material benefits beyond reasonable medical expenses. The intended parents must be legally eligible to become parents, and the surrogate must be over 25 years old and have had her own children.

All parties must seek independent legal advice to ensure they understand their rights and obligations, including the legal process for obtaining a parentage order after the child’s birth.

A surrogacy lawyer provides legal guidance throughout the surrogacy process, including advising on the rights and obligations of all parties involved. The surrogacy lawyer drafts the advice letter to the Patient Review Panel (ensuring the technical requests are met), helps draft a surrogacy agreement (if necessary – usually not required in Australia), ensures the arrangement complies with Australian law, and assists in securing parental rights through a court-approved parentage order. Surrogacy lawyers also handle disputes and offer support for fertility-related issues, such as donor conception, ensuring ethical and legal compliance throughout the journey.

In Victoria, surrogates cannot receive payment for carrying a child other than certain specific expenses. Commercial surrogacy is illegal in Australia. The surrogate’s compensation is limited to certain costs directly associated with the pregnancy such as medical expenses. Any material benefit, including payment beyond  the certain expenses, is prohibited under Australian surrogacy laws. Advice about specific expenses from your surrogacy lawyer should be obtained to ensure there is no breach of the law.

In Victoria, surrogate carriers have specific rights, including the right to have their medical expenses paid for the pregnancy and to make decisions regarding her health. Surrogates are also entitled to independent legal advice before entering into a surrogacy agreement. Following the child’s birth, the surrogate may be required to relinquish her parental rights to the intended parents through a parentage order in the County Court of Victoria.

If either the surrogate or intended parents change their minds during or after the surrogacy arrangement, the situation can become legally complex. The surrogate retains her rights during the pregnancy, but once the child is born, the intended parents will need to apply for a parentage order. If a dispute arises the first step is mediation. Our surrogacy lawyer team can assist with this process and help select a mediator with expertise in surrogacy. If mediation fails an application to the Federal Circuit and Family Court of Australia may be necessary. The court will assess what arrangements are in the child’s best interests, and may make parenting orders.