In Victoria, the Assisted Reproductive Treatment Act 2008, which came into effect in Victoria in 2010, provides greater rights for same-sex couples in the area of surrogacy. Currently the law in Victoria permits only gestational surrogacy (link to page on surrogacy in Australia) and requires the involvement of two different women for the purpose of surrogacy – the woman who will carry the child and another woman to donate her eggs. Neither woman may be paid for her services. The law prohibits any advertising or notification for surrogacy services (to be one or to hire one), but advertising for an egg donor is permitted. Men who have limited fertility may use a sperm donor.
Becoming the Legal Parents
1. The Birth Certificate
The surrogate will automatically be listed as the child’s mother on the birth certificate, and her partner (if she has one) as the other parent. The commissioning parents must turn to the courts for a Substitute Parentage Order to be legally registered as the child’s parent(s).
2. Importance of Location
Commissioning parents can apply for a Substitute Parentage Order only if: (1) the child was conceived as a result of a procedure that took place in Victoria AND; (2) the commissioning parents live in Victoria at the time the application for a parentage order is submitted.
3. Time is of the Essence
Commissioning parents must apply for the Substitute Parentage Order no less than 28 days after the birth and not more than 6 months after the child is born. The court may make exceptions.
4. When the Court will give the Order
A court will give a Substitute Parentage Order when ALL of the following requirements have been met or proven to be true:
- Making the order is in the best interests of the child
- A Patient Review Panel approved the arrangement (if a registered ART provider assisted in the process)
- The child was living with the commissioning parents when the application for the order was made
- The surrogate mother and her partner (if she has one) did not receive any material benefit or advantage from the surrogacy arrangement
- The surrogate mother freely consents to the order
