What Is Surrogacy? A Family Lawyer Explains the Australian Rules, Laws and Options
Written by Sarah Jefford, Family Creation Lawyer | Last reviewed June 2026
According to the 2023 Australian and New Zealand Assisted Reproduction Database (ANZARD) report, more than 100 surrogacy births came from 405 surrogacy arrangement cycles in Australia and New Zealand that year. At the same time, the Australian Department of Home Affairs estimates that approximately 376 Australian passports were issued to babies born via overseas surrogacy in 2024 alone, meaning more Australian babies are now born via international surrogacy than domestic arrangements each year.Surrogacy is not new. But it is gaining recognition, and the laws that govern it in Australia are actively changing."Many people believe surrogacy is illegal in Australia, which is just not true," says Sarah Jefford, a family creation lawyer practising exclusively in surrogacy and donor conception arrangements on Wurundjeri Country in Victoria, and the only lawyer in Australia working solely in this area. She was awarded the Medal of the Order of Australia in 2023 for her services to the law and the surrogacy community.
A surrogacy dictionary
Before getting into the detail, here are the terms worth knowing.
Intended parents (IP): the parents of a baby born through a surrogacy arrangement.
Gestational carrier: a woman who agrees to have a couple's embryo implanted in her uterus and carry the pregnancy on their behalf.
Traditional surrogate: a surrogacy arrangement involving the surrogate's own egg.
Altruistic surrogacy: an unpaid surrogacy arrangement. This is the only legal form available in Australia domestically.
Commercial surrogacy: surrogacy involving commercial payment to the surrogate.
What is surrogacy?
Surrogacy is "a form of assisted reproductive technology (ART) where a woman (the surrogate) offers to carry a baby through pregnancy on behalf of another person or couple and then return the baby to the intended parent(s) once it is born," as defined by IVF Australia.
In modern surrogacy practice, the surrogate is rarely also the egg donor. In most cases the embryo belongs genetically to the intended parents. Where donor eggs or sperm are required, these may come from either the surrogate or a separate donor.
According to IVF Australia, surrogacy is available to those who are unlikely to become pregnant, carry a pregnancy or give birth due to a medical condition; who have experienced multiple transfers of a genetically normal embryo without success; or who are a single male or in a same-sex male relationship.
How do Australian surrogacy laws differ by state and territory?
Australian surrogacy laws are managed by each state and territory separately, which is one reason the system can feel complex. All states and territories permit altruistic surrogacy. All prohibit commercial surrogacy. Beyond that, the specific requirements vary. For the most current state-by-state detail, surrogacy.gov.au and VARTA are the most reliable Australian government resources.
Domestic surrogacy
Both the intended parents and the surrogate are based in Australia. In Australian law, the arrangement must be altruistic: the surrogate cannot be paid for their services, only have reasonable expenses covered.
"Australian surrogacy requires the parties to engage in counselling and legal advice before entering the arrangement," Sarah explains. "There must also be a medical or social need for surrogacy, which means the intended parents cannot conceive or carry themselves."
Key developments as of mid-2026:
Western Australia passed landmark reform in December 2025. The Assisted Reproductive Technology and Surrogacy Act 2025 removes discriminatory barriers that previously restricted access for same-sex couples and single men. WA now allows all residents, regardless of gender, sexuality or relationship status, to access altruistic surrogacy equally, bringing it into line with the rest of the country. The Act comes into full effect approximately 18 months after passing.
In NSW, ACT and QLD, international and commercial surrogacy remains illegal for residents even when undertaken overseas.
SA allows single parents to pursue surrogacy following recent reform. In TAS, intended parents remain limited to finding a Tasmanian resident as their surrogate.
The Northern Territory's Surrogacy Act 2022 has commenced, enabling NT residents to undertake domestic surrogacy for the first time.
The Australian Law Reform Commission is currently conducting a national review of Australian surrogacy laws, with a final report due to the Attorney-General by 29 July 2026. This review may result in significant national harmonisation of laws, and is worth following if you are in the early stages of planning.
International and commercial surrogacy
The intended parents are based in Australia and the surrogate lives overseas. Agencies are typically engaged to manage the commercial agreements. The USA and Canada are the most commonly used countries, as both are broadly accessible to all family types including same-sex couples.
"International surrogacy has different criteria depending on the country," Sarah explains. "Some countries require the intended parents to be a heterosexual married couple. Countries like the USA and Canada are more welcoming for all family types."
The case for surrogacy reform in Australia
"It would be great if we could make surrogacy more accessible within Australia so that intended parents don't need to go overseas," Sarah says. "There are prohibitions on advertising for a surrogate in some states, which makes it difficult to find one. I think we should make advertising legal across the country."
The process, she stresses, is not a shortcut. "Surrogacy is a marathon, not a sprint. It's really complex. It is not a simple way to have a baby, because it involves extra people and complex legal processes. It can be amazing, challenging, exciting and wonderful, as well as hard work."
Is surrogacy right for your family?
If you are considering surrogacy and want to understand the legal pathway available to you, Sarah Jefford offers advice and assistance at all stages, from the initial arrangement through to the post-birth Parentage Order. She has published The Australian Surrogacy Handbook, a free guide for intended parents and surrogates. She also produces The Surrogacy Podcast, which shares more than 100 stories from intended parents and surrogates across Australia.
For more on fertility treatment options, see our guide to A Starters Guide to IVF and Holistic IVF Add-ons.
moode answers your questions about surrogacy in Australia
Is surrogacy legal in Australia?
Yes. Domestic altruistic surrogacy is legal across all states and territories in Australia. Commercial surrogacy is illegal domestically, and illegal for residents of some states to pursue overseas. The specific rules vary by state. surrogacy.gov.au is the Australian government's official resource for current state-by-state information.
Who can be a surrogate in Australia?
Australian law requires the surrogate to have completed her own family and to be entering the arrangement altruistically, without commercial payment. She must undergo counselling and independent legal advice before the arrangement begins. Age and other eligibility requirements vary by state.
How long does surrogacy take in Australia?
The timeline varies significantly depending on the state, the availability of a surrogate, and the complexity of the legal and medical process. Most surrogacy journeys take several years from beginning to the birth of the child.
Can same-sex couples use surrogacy in Australia?
Yes, now in all states and territories. Western Australia's landmark 2025 reform removed the last remaining restrictions, meaning same-sex couples and single men can now access altruistic surrogacy equally across the country.
What is a Parentage Order?
A Parentage Order is a court order obtained after the birth of the baby that transfers legal parentage from the surrogate to the intended parents. It is a required legal step in Australian domestic surrogacy arrangements.
About Sarah Jefford
Sarah Jefford is a family creation lawyer practising exclusively in surrogacy and donor conception law across all Australian states and territories. She is an IVF mum, egg donor and surrogate herself. In 2023, she was awarded the Medal of the Order of Australia for services to the law and her work with the surrogacy community. Visit sarahjefford.com to access her free handbook, podcast and legal services.
Additional sources: surrogacy.gov.au | VARTA | IVF Australia | ANZARD 2023 Report | Australian Law Reform Commission
