Evren Kurt.

Creating families.

The legal side of surrogacy, donor conception and assisted reproduction: how families are formed, and how the law recognises them.

My practice at Page Provan focuses on surrogacy, fertility and donor conception. This is general, educational information, written for Queensland first, with notes on New South Wales and Victoria where verified. It is not legal advice.

Showpiece i

The journey to parenthoodSurrogacy law.

A general overview of how an altruistic surrogacy arrangement proceeds, from the first meeting to a parentage order. Queensland is shown first; choose another State to see how it differs.

Jurisdiction: Queensland

Stage iFirst consultation and legal considerations

The first questions are whether surrogacy is legally available and which State's law will apply. In Queensland, the intended parents must live in Queensland when they apply, must generally have a medical or social need for surrogacy, and must generally be at least 25, as must the birth mother. Commercial surrogacy is a criminal offence, and the offence extends to Queensland residents who enter a paid arrangement overseas.

In New South Wales, the intended parents must live in New South Wales when the court hears the application. The birth mother must have been at least 25 when the arrangement was made, and each intended parent at least 18, with additional requirements for an intended parent under 25. A medical or social need is generally required. Commercial surrogacy is an offence, including for NSW residents who enter a paid arrangement overseas.

Victoria works differently. Where a registered fertility clinic is involved, the surrogacy arrangement must be approved by the Patient Review Panel before it is entered into. The surrogate must have been at least 25 when the arrangement was made, and for clinic surrogacy she must not use her own eggs. Commercial surrogacy is prohibited.

This content has not been prepared for South Australia, Western Australia, Tasmania, the ACT or the Northern Territory. Each has its own legislation, court, age rules and time limits, and Western Australia is introducing a new scheme. Please contact Page Provan for advice.

Stage iiCounselling, independent advice and the arrangement

Before the child is conceived, the birth mother and her partner, if any, and the intended parents each receive counselling from a qualified counsellor and independent legal advice. The arrangement is then recorded in writing and signed. It can provide for the birth mother's reasonable surrogacy costs, but no payment or reward beyond those costs.

The arrangement must be made before conception and recorded in writing. Each party receives counselling before the arrangement is made, and independent legal advice about it.

Counselling and legal advice are required for every party, and are confirmed to the Patient Review Panel before it considers the arrangement. The arrangement is recorded in writing.

This content has not been prepared for South Australia, Western Australia, Tasmania, the ACT or the Northern Territory. Each has its own legislation, court, age rules and time limits, and Western Australia is introducing a new scheme. Please contact Page Provan for advice.

Stage iiiPregnancy, birth and initial parentage

The birth mother makes her own decisions about her pregnancy and health. When the child is born, she and her partner, if any, are the child's legal parents, and the birth is registered naming them. The child usually goes home with the intended parents, but the signed arrangement does not by itself make them the legal parents.

At birth, the birth mother and her partner, if any, are the child's legal parents, and the birth is registered naming them. The child usually lives with the intended parents, but the arrangement does not transfer parentage.

At birth, the surrogate is the child's legal mother and the birth is registered naming her. Victorian law confirms that she has the same right as any other pregnant woman to manage her pregnancy.

This content has not been prepared for South Australia, Western Australia, Tasmania, the ACT or the Northern Territory. Each has its own legislation, court, age rules and time limits, and Western Australia is introducing a new scheme. Please contact Page Provan for advice.

Stage ivPreparing the parentage application

The child must have lived with the intended parents for at least 28 consecutive days. An independent counsellor, different from the one who counselled before the arrangement, prepares a surrogacy guidance report. Affidavits are prepared, and the application is generally filed when the child is between 28 days and 6 months old.

The application is generally made between 30 days and 6 months after the birth, while the child is living with the intended parents. An independent counsellor prepares a report after the birth.

The intended parents apply between 28 days and 6 months after the birth.

This content has not been prepared for South Australia, Western Australia, Tasmania, the ACT or the Northern Territory. Each has its own legislation, court, age rules and time limits, and Western Australia is introducing a new scheme. Please contact Page Provan for advice.

Stage vCourt process, parentage order and registration

The Childrens Court of Queensland decides whether to make a parentage order, considering whether it is in the child's best interests and whether the requirements are met. If the order is made, legal parentage transfers to the intended parents, the birth is re-registered and a new birth certificate can be issued.

The Supreme Court of New South Wales decides whether to make a parentage order, which must be in the child's best interests. If it is made, the birth is registered again naming the intended parents.

The County Court of Victoria decides whether to make a substitute parentage order. If it is made, the birth is registered again naming the intended parents.

This content has not been prepared for South Australia, Western Australia, Tasmania, the ACT or the Northern Territory. Each has its own legislation, court, age rules and time limits, and Western Australia is introducing a new scheme. Please contact Page Provan for advice.

An arrangement does not transfer parentage.

Legal parentage changes only by court order. In Queensland the arrangement is not enforceable, apart from reimbursing the birth mother's reasonable surrogacy costs.

Every State is different.

Courts, ages, time limits and approvals differ between States and Territories. Choose a jurisdiction above.

Altruistic only.

Commercial surrogacy is prohibited throughout Australia.

Legal considerations
  • Which State's law governs usually depends on where the intended parents live, but where the surrogate lives, where treatment happens and where the child is born all matter.
  • Fertility clinics apply national ethical guidelines and their own policies, which can add requirements.
  • Wills and guardianship deserve attention before the birth, because the intended parents are not the legal parents until the order is made.
Queensland by default; NSW and Victoria where verified · General information, current as at October 2026Enquire with Page Provan
Showpiece ii

The connections that matterDonor conception.

Sperm and egg donation connect a donor, the intended family, a clinic and, one day, a child. Choose a topic to see which connections it concerns.

Legal parentage, generally Genetic contribution, or a link to the register
Jurisdiction: Queensland

01Known and clinic donors

A known donor is someone the family knows, such as a friend or relative. A clinic donor is recruited or identified through a fertility clinic.

Australian law prohibits paying for eggs, sperm or embryos beyond reasonable expenses, so donation must be altruistic.

02Intentions and expectations

Before donating, everyone should talk openly about the role the donor will have, whether there will be contact, how and when the child will be told, and whether the donor may help other families.

03Counselling and consent

Clinics require counselling about the implications of donation for donors, their partners and recipients.

Donors give written consent to specific uses of their material, and that consent can generally be varied or withdrawn until the material is used.

04Donor agreements

A written agreement records everyone's intentions about roles, contact, information, future use and what happens if circumstances change.

It is valuable evidence, but it cannot by itself decide who is a legal parent. Each party should have independent legal advice.

05Legal parentage

Under State status of children laws and the Family Law Act 1975 (Cth), the woman who gives birth is the child's mother, her consenting partner is generally the other parent, and a donor is generally not a parent.

06Future contact and information access

Under the Assisted Reproductive Technology Act 2024 (Qld), Queensland is introducing a donor conception information register, administered by the Registrar of Births, Deaths and Marriages and rolling out during 2026, so that donor-conceived people can seek information about their donors and donor siblings. Advice about identity release should be given before any donation.

In New South Wales, clinics provide donor information to the NSW Health Central Register for children born through clinic treatment from 1 January 2010. A donor-conceived person can apply for identifying information about their donor from age 18.

Victoria has the most extensive access regime in Australia. Through its Central Register, donor-conceived people can apply for identifying information about their donor, including for donations made before current laws.

Registers and access rules differ in the other States and Territories. Please contact Page Provan for advice.

Genetics and parentage are different.

A genetic connection does not by itself make a donor a parent, and its absence does not prevent someone from being one.

An agreement is evidence, not a guarantee.

If an arrangement looks like co-parenting in practice, a court may see it that way.

Children may one day identify their donor.

Information rights for donor-conceived people are expanding across Australia.

Legal considerations
  • Commonwealth law makes it an offence to give or receive valuable consideration for human eggs, sperm or embryos, other than reasonable expenses.
  • Clinic treatment and home insemination can lead to different legal outcomes.
  • Limits on how many families one donor can help, and record-keeping rules, depend on the State where treatment occurs.
  • Clinics may require the consent of a donor's partner.
Queensland by default; NSW and Victoria where verified · General information, current as at October 2026Enquire with Page Provan
Further topics

Further topics in creating families.

Each topic opens in place, with its key steps and the legal considerations behind them.

A different path to parenthoodEgg donation

Using a donor's eggs to conceive, through a fertility clinic. A genetic connection does not by itself make an egg donor a legal parent.

Donor and recipient roles

The donor may be a friend or relative, or a donor identified through a clinic. The recipient is the woman who will carry the pregnancy, with her partner if she has one.

Counselling

Clinics require counselling for donors, their partners and recipients about the implications for everyone, including any future child.

Consent and documentation

The donor gives written consent to specific uses of her eggs. A donor agreement can record intentions about contact and information.

Assisted reproductive treatment

Eggs are collected and fertilised through IVF. Australian law prohibits paying for eggs beyond the donor's reasonable expenses.

Parentage

The woman who gives birth is the child's legal mother, and her consenting partner is generally the other parent. The egg donor is generally not a legal parent.

Information rights

Donor-conceived people may later be able to access information about their donor through State registers, as explained under donor conception above.

Legal considerations
  • Genetic connection and legal parentage are different questions.
  • Family limits and record-keeping rules depend on the State where treatment occurs.
  • Frozen eggs are subject to storage consents and limits.
Jurisdiction: Queensland, with general Australian principlesEnquire with Page Provan

Decisions about the futureEmbryos: storage, consent and disputes

Embryos are not ordinary property, and they are not children. Decisions about them turn on consent: whose consent is needed to store, use, donate or discard them.

Creation

Embryos may be created from a couple's own eggs and sperm, or with donated material. Who provided the gametes affects whose consent is needed later.

Storage

Clinics store embryos subject to time limits and consent renewal set by law, national guidelines and clinic policy.

Consent

Clinics act on the written consents completed at the time of treatment, so those forms matter a great deal.

Proposed use

Using embryos, whether in treatment, after a separation or after a death, raises its own consent questions.

Relationship breakdown

If a couple separates, one person generally cannot use embryos created together without the other's continuing consent.

Disputes

Disagreements are resolved by reference to the clinic consents, any written agreement, legislation and guidelines. One person cannot always decide.

Donation or disposal

Embryos may be donated to another family, used for research or allowed to succumb, each only with the required consents.

Legal considerations
  • An embryo agreement should match the clinic's consent forms.
  • Donating embryos to another family raises parentage and information questions for any child born.
  • Rules differ between States and continue to change, including under Queensland's Assisted Reproductive Technology Act 2024.
Jurisdiction: Queensland, with general Australian principlesEnquire with Page Provan

Across bordersInternational and interstate surrogacy

Whether an arrangement is lawful overseas is a different question from its consequences under Australian law.

Choice of jurisdiction

Where the intended parents live, where the surrogate lives, where treatment happens and where the child is born each affect which laws apply, between States as much as between countries.

Australian legal restrictions

Commercial surrogacy is prohibited in every Australian State and Territory. In Queensland, New South Wales and the ACT, the offence extends to residents who enter a commercial arrangement overseas.

Overseas legal requirements

Overseas laws change often, and advice from a qualified lawyer in that country is essential. An arrangement that is lawful there may still be an offence for an Australian resident.

Birth and legal parentage

A foreign birth certificate or court order naming the intended parents does not make them legal parents under Australian law.

Citizenship and passports

A child born overseas usually needs Australian citizenship by descent, which generally requires evidence of a genetic link to an Australian citizen parent, followed by a passport application.

Return to Australia

Exit documents, travel and visa steps can take weeks or months, depending on the country.

Recognition and court proceedings

Back in Australia, intended parents usually apply to the Federal Circuit and Family Court for parenting orders. These give parental responsibility, but do not make them legal parents.

Legal considerations
  • Section 60HB of the Family Law Act 1975 (Cth) recognises only Australian State and Territory parentage orders.
  • In Bernieres & Dhopal (2017), the Full Court of the Family Court confirmed that, without such an order, intended parents through an overseas arrangement are not parents for the purposes of the Family Law Act.
  • Interstate arrangements need planning from the start: a Queensland parentage order requires Queensland-resident applicants.
  • Wills and guardianship matter, because the intended parents may not be the child's legal parents.
Jurisdiction: Australia, with Queensland as the defaultEnquire with Page Provan

Who is a parent in law?Legal parentage and recognition

Birth, genetics, intention and legal recognition do not always give the same answer.

Birth

The woman who gives birth is presumed to be the child's mother, including where donated eggs or embryos were used.

Partners

Her spouse or de facto partner who consented to the assisted conception is generally presumed to be the child's other parent, under State laws.

Donors

A sperm or egg donor is generally not a legal parent under those laws.

Intention

Intending to be a parent does not by itself make someone a legal parent. In surrogacy, intention is recognised through a court order.

Legal recognition

A State or Territory surrogacy parentage order transfers parentage and is recognised for Commonwealth purposes under section 60HB. Overseas documents are not recognised in the same way.

Legal considerations
  • The detail of parentage rules differs between States and Territories.
  • Parentage affects inheritance, child support, citizenship and decision-making for the child.
  • Where parentage is uncertain, a court can sometimes be asked to make a declaration of parentage.
Jurisdiction: Commonwealth and State lawEnquire with Page Provan

Consent beyond a lifetimePosthumous reproduction

A sensitive area, where time, consent and the law of the place all matter. Retrieval and later use are separate questions.

Existing consent

Written consent, clinic consent forms and other evidence of the person's wishes are central to what is possible.

Storage and retrieval

Retrieval from a person who has died is extremely time-sensitive, and is governed by human tissue laws and, in Queensland, the Assisted Reproductive Technology Act 2024 (Qld).

Proposed use

Using stored material in treatment is a separate, later decision, with its own requirements and time for proper consideration.

Clinic requirements

Clinics apply national ethical guidelines, counselling requirements and their own policies before any use.

Court applications

Sometimes an urgent application to a Supreme Court is needed to permit retrieval or storage, and in some places a court must also approve use.

Jurisdictional differences

The law of the place where retrieval happens applies, and moving material between States requires each step to be lawful.

Legal considerations
  • In New South Wales, posthumous use generally requires the person's written consent.
  • Queensland's Assisted Reproductive Technology Act 2024 introduced a framework for retrieval from deceased and unresponsive persons, and regulations may affect use.
  • Families facing this situation should seek legal advice urgently.
Jurisdiction: Varies by State; Queensland notedEnquire with Page Provan
Also exploreNavigating family change

General information only, current as at October 2026. It is not legal advice and does not cover every situation. For advice about your circumstances, please contact Page Provan Family and Fertility Lawyers.