Surrogacy of Children

11 April, 2019
Posted by: Kristina Lukic
Kim and Kanye have done it, so has Sarah Jessica Parker and Neil Patrick Harris. Surrogacy of children is by no means a new concept, but it is something that has never been considered mainstream in Australia.

Surrogacy or as it’s known in New South Wales, transfer of parentage, sees a woman carry a child on behalf of others with the intent giving them that child at birth.  

The transfer of parentage is made legal through an application made to the Supreme Court of NSW that legally changes the parents of a child born through surrogacy from their birth parents, being the surrogate and the biological father to the intended parents.

In order to make the application, a number of very strict conditions must be met. These include and are not limited to: -

  1. The birth Mother must be at least 25 years old;
  2. The intended parents must be at least 18 years old;
  3. The surrogacy must be altruistic, meaning that there is no monetary gain for the birth Mother in choosing to be a surrogate;
  4. The birth of the child must be registered with Births, Deaths and Marriages with the birth parents listed as the parents;
  5. That all parties attend surrogacy specific counselling; and
  6. That all parties obtain independent legal advice.

An application can only be made 30 days after the birth of the child and no later than 6 months after the birth. For this reason, it is imperative that you obtain legal advice promptly to ensure that all aspects of the application have been complied with to ensure that the deadline of 6 months after birth is met.

Once the Court is satisfied that the transfer is in the best interests of the child and that all requirements have been met, they will then make the Order that the transfer take place. If the application is granted, the intended parents become the legal parents of the child and their names are added on the child’s birth certificate. The intended parents are now also able to obtain services under Medicare for the child.

This is a very different process to a Family Court application. The definition of a parent under the Family Law Act is limited to ‘natural’ parents and adoptive parents. An application in this jurisdiction does not determine who is the legal parent, but rather who the child shall live with and who has responsibility over the child in relation to decision making. The Family Law Act does however recognise an order of the Supreme Court in relation to a transfer of parentage and who the child’s legal parents.

If you are considering whether surrogacy is right for you and your family, please contact our office to book an appointment with Cheryl our experienced surrogacy lawyer on 4655 4224 or reach out at This email address is being protected from spambots. You need JavaScript enabled to view it..

Surrogacy of Children


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