What is surrogacy?

Surrogacy is a form of assisted reproductive treatment (ART) in which one woman carries a child in her uterus and delivers it for another person or couple. For some women, carrying her own baby through pregnancy is impossible and using a surrogate is her only hope of having a child. In other instances a homosexual couple may want to create their family and the use of a surrogate provides them the only chance of doing so.

Surrogacy is a complex process and there are a number of medical, legal, financial and emotional issues to take into consideration.

Is surrogacy legal in NSW?

In NSW, surrogacy is governed by the Surrogacy Act 2010 which allows IVF surrogacy under strict requirements.

IVF surrogacy

Surrogacy at Genea requires IVF so that the eggs of the intended mother can be collected and fertilised with the sperm of the intended father. Embryos that develop can then be transferred to the uterus of the woman serving as the surrogate.

It is possible for donor eggs or donor sperm to be used in circumstances where it is not possible or recommended to use the gametes of the couple wanting to have a baby.

Surrogacy is not a simple process and requires commitment and dedication from all parties.

The Surrogacy Act 2010 requires that all parties wanting to enter into a surrogacy arrangement must:

  • undergo counselling and assessment prior to treatment;
  • have a written legal agreement from two independent lawyers – one for the intending parent(s) and one for the proposed surrogate;
  • Additionally, the surrogate must:
    • be more than 25 years old; and
    • have an assessment and counselling after the birth of the baby and prior to the parentage order – which transfers parentage of the child from the birth parent(s) to the intending parent(s).
  • At Genea, we strongly recommend that the surrogate have at least one living child and be in an established, ongoing relationship with the intending parents, as surrogacy requires an enormous amount of trust between the parties.

What's not allowed?

The Act allows altruistic surrogacy which means the surrogate receives no commercial monetary gain, but it prohibits commercial surrogacy both within Australia and outside. Commercial surrogacy is where surrogacy is undertaken in exchange for payment.

The law makes it illegal for couples or individuals from NSW to travel overseas for the purposes of commercial surrogacy and Genea cannot assist in any treatment for this purpose. Genea does not support traditional surrogacy – where the surrogate’s eggs are used to create the pregnancy either through insemination or IVF, nor the use of both donor eggs and donor sperm with surrogacy.

Next Steps

  1. Intended parents select and see a Genea Fertility Specialist
  2. Intended surrogate sees the selected Genea Fertility Specialist
  3. Intended surrogate sees an independent obstetrician
  4. Two counselling sessions are required, one for for the intending parents and one for the surrogate (with their partner if they have one)
  5. A report is required from an independent psychologist
  6. Independent lawyers must be consulted - we can recommend experts
  7. The case goes to the Genea Review panel for consideration
  8. A decision will be received
  9. Intending parents and surrogate go to see the Fertility Specialist
  10. Treatment starts once all of the above has taken place
  11. The eggs and sperm (or any embryos) must be quarantined for 4 months prior to transfer. This quarantine cannot be waived or shortened.

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