Australian Capital Territory
The Australian Capital Territory legislation guiding surrogacy arrangements are set out in the Parentage Act 2004, which can be found on the ACT Legislation Register.
Who may enter into a surrogacy arrangement
| Intended parents | Surrogate |
|---|---|
| Must be at least 25 years old | Must be at least 18 years old |
| Must be residents of the ACT | Does not need to be resident of the ACT |
| Must be part of a couple (married or defacto, heterosexual or same sex) | Must have birthed her own child(ren) |
Requirements
- Arrangements must not be commercial, and any payment to a surrogate needs to be strictly to reimburse her for expenses connected the surrogate pregnancy.
- Only gestational surrogacy arrangements are permitted (i.e. the surrogate must not be genetically related to the child). EDIT – As of November 2023, Traditional surrogacy in now allowed in the ACT
Enforceability
- Surrogacy arrangements made in the ACT cannot be enforced anywhere in Australia.
Payments in surrogacy arrangements
| Allowed | Not allowed |
|---|---|
| Intended parents may reimburse their surrogate for costs connected to the surrogate pregnancy and birth | Commercial surrogacy arrangements are prohibited in the ACT, and it is considered an offence to intentionally enter into a commercial surrogacy arrangement |
It is an offence for residents of the ACT to enter into a commercial surrogacy arrangement elsewhere in Australia or internationally.
It is also an offence for IVF clinics to treat clients who they know to be party to a commercial surrogacy arrangement.
Advertising
| Allowed | Not allowed |
|---|---|
| It is illegal for intended parents to advertise their need for a surrogate (this includes posting something online) | It is illegal for surrogates to advertise their desire to act as a surrogate (this includes posting something online) |
Parentage
At birth, the surrogate is recognised as the birth mother of the child, and if she has a husband or partner they are recognised as the child’s other parent. Intended parents can apply to the Supreme Court for a Parentage Order when the child is between six weeks and six months old.
Preconditions to Parentage Orders
For intended parents to make an application for a parentage order in the ACT there are several mandatory requirements:
- the child was conceived in the ACT. EDIT – as of November 2023, IVF treatment can take place outside of the ACT.
- As of November 2023, both gestational and traditional surrogacy are allowed.
- the surrogacy arrangement must not have been commercial.
- the surrogacy arrangement must have indicated that the intended parents intended to apply for a parentage order.
- at least one of the intended parents is genetically related to the child.
- the intended parents live in the ACT.
Other considerations the Supreme Court may have include:
- whether the intended parents are both over 18.
- if the child has been living with the intended parents since birth (or for some time).
- whether the intended parents and the surrogate and her partner have received appropriate counselling.