Surrogacy

Surrogacy is when someone becomes pregnant and gives birth for someone else.

A surrogacy arrangement is made between the surrogate and the intended parents.

In a surrogacy arrangement, the:

  • surrogate is the person who agrees to give birth to the child
  • intended parent or parents are the person or couple who will become the child’s parents.

Surrogacy in the NT

The Surrogacy Act 2022 regulates surrogacy arrangements in the Northern Territory.

Only non-profit surrogacy is legal in the NT.

Under the Act:

  • you can:
    • enter into a non-commercial surrogacy arrangement
    • reimburse the birth mother's reasonable surrogacy costs.
  • you can't:
    • pay someone to be a surrogate
    • be paid a fee for arranging surrogacy.

The best interests of the child are most important when making a surrogacy arrangement.  This includes the child’s safety, wellbeing and the right to know their origins.

Who can enter a surrogacy arrangement

There are rules around who can enter a surrogacy arrangement.

Surrogates and intended parents must be:

  • Australian citizens or permanent residents
  • aged 25 or over.

Exceptions may be allowed to these rules.

Find out more about who can become:

How to enter a surrogacy arrangement

Surrogacy arrangements are financially, legally and emotionally complex.

To enter an arrangement and transfer parentage, follow these steps:

Step 1. Get legal advice

The surrogate and intended parent/s must get independent legal advice to understand their rights and responsibilities. This must happen before any arrangement is made.

A legally certified surrogacy arrangement should be in place before the surrogate becomes pregnant. Other than agreement of reasonable costs, no other part of the agreement is enforceable.

Legal practitioners must be independent and should not be part of any business providing fertility services.

The legal advice will cover:

  • only reasonable costs being legalised in the arrangement
  • agreement on reasonable costs not covered under Medicare or insurance
  • the surrogate mother not giving the child to the intended parent/s
  • all or some parties not wanting responsibility for the child
  • the parentage order
  • the child’s right to information on their parentage.

The legal advice must be written and certified as a surrogacy arrangement. The arrangement will confirm:

  • legal qualifications of the practitioner
  • names of parties
  • dates of advice given
  • matters listed in the Act under 'legal advice'
  • evidence that parties understand the arrangement.

Step 2. Get counselling

The surrogate and intended parent/s must get counselling before they enter a surrogacy arrangement.

Both parties must have at least 2 counselling sessions:

  • before entering into the agreement
  • after the birth of the child
  • before seeking a parentage order.

Choosing a counsellor

Counsellors must:

  • be members of the Australian and New Zealand Infertility Counsellors Association (ANZICA) or
    • have other qualifications allowed by the law
  • be independent of businesses providing fertility services.

The surrogate and intended parent/s may share the same counsellors.

For a list of counsellors in Australia that specialise in surrogacy, go to the Fertility Society of Australia and New Zealand website.

Step 3. Formalise the arrangement

The surrogate and intended parent/s must agree on the terms of the surrogacy arrangement including reasonable costs to be paid to the surrogate.

They will need to put this agreement in writing and this will need to be legally certified.

Step 4. Conception and pregnancy

There are different ways a surrogate can become pregnant. This a choice to be considered between the surrogate and intended parent/s.

The surrogate has the right to manage her pregnancy and birth the same as any other pregnant person.

Read more about the different types of surrogacy.

Step 5. Register the birth

The birth parent must register the baby's birth with the Registry of Births, Deaths and Marriages.

Step 6. Get counselling

The surrogate, their partner, if any, and any other birth parent must have counselling after the birth of the child.

They may use the same counsellor they used before the arrangement was made.

Step 7. Get a counselling report

Before applying for a parentage order, all parties to the arrangement and any other birth parent must be interviewed by a new counsellor.

The counsellor will:

  • review all counselling reports and certificates
  • give a summary report to the local court, the surrogate and intended parent/s.

Step 8. Apply for a parentage order

The parentage order transfers legal responsibility from the surrogate mother to the intended parent/s.

You can apply for a parentage order once the child is living with at least one of the intended parent/s and:

  • no earlier than 30 days after the birth and
  • no later than 180 days after the birth.

On the date the parentage order is made, the:

  • child becomes the child of the intended parent/s
  • intended parent/s become the parents of the child.

The application for a parentage order is made to the local court and must include a:

  • legally certified copy of the surrogacy arrangement
  • copy of the counselling report
  • legally certified copy of the birth certificate.

For the local court to make the parentage order:

  • the surrogacy arrangement must be non-commercial
  • counselling requirements must have been met
  • the child must be living with the intended parents
  • parties to the agreement and any birth parents must have given consent
  • residential requirement for the applicants must be met
  • it must be in the best interests of the child.

Arranging a surrogacy outside the NT

If you're considering an arrangement with a person outside of the NT, you must check the laws in that state or territory.

For more information, go to the relevant website:

More information

Find out more on the Fertility Society of Australia and New Zealand website.

If you are thinking about becoming a surrogate or intended parent, talk with your doctor or fertility clinic.

Speak with your legal advisor about what surrogacy arrangements will mean to you.

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