Surrogacy in NSW: What can I pay to the birth mother?

We have written briefly about applications for surrogacy in New South Wales in the past. In that article, we wrote that generally, a couple (or a person) looking to enter into a surrogacy arrangement with a birth mother (and her partner) must have satisfy a number of matters. The most important matters are that:

1. There is a medical or social need for surrogacy;
2. The surrogacy arrangement must be altruistic;
3. The surrogacy arrangement must be in writing;
4. The parties must have counselling; and
5. The parties must have independent legal advice.

One of the key requirements for surrogacy is that the surrogacy must be altruistic and not commercial. This is covered in sections 7, 8, 9, and 23 of the Surrogacy Act 2010 (New South Wales) (the Act).

The Act states that:

1. It is a precondition of a surrogacy application that the surrogacy must be altruistic – that is, not a commercial surrogacy arrangement: Section 23 of the Act;
2. Commercial surrogacy arrangements are prohibited and carries a fine of up to $110,000 for an individual and a jail term of up to 2 years: Section 8 of the Act;
3. A commercial surrogacy arrangement is one where there is a promise of payment to a person for that person (or another person) to enter into a surrogacy arrangement, giving up a child born as a result of a surrogacy arrangement, or in exchange for consent to an application for surrogacy, unless the payment to them is in relation to the reimbursement of the birth mother’s reasonable costs of surrogacy; and
4. The birth mother’s reasonable costs of surrogacy means reasonable costs:
   1. In relation to the birth mother becoming or trying to become pregnant;
   2. In relation to the birth mother’s pregnancy or costs in giving birth; and
   3. In relation to the birth mother entering into or giving effect to a surrogacy arrangement.

The more common examples are:

1. The birth mother’s legal costs.
2. Travel and accommodation costs for the birth mother if needed to attend her lawyer’s offices, medical appointments.
3. Medical or Life insurance policies – but only where additional coverage is needed as a result of the pregnancy.
4. Any out of pocket medical costs that are not covered by Medicare.
5. Loss of income as a result of the mother needing to take unpaid leave (although there are some limitations on this).

This issue is unfortunately complex and depends on many circumstances. You should always seek legal advice if you are unsure about what reasonable costs are.

If you have any questions give Kenneth Ti of Adams & Partners Lawyers a call to discuss your needs.

Written by Kenneth Ti.