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 there must be a medical or social need for it. This is covered in Section 30 of the Surrogacy Act 2010 (New South Wales) (the Act). The Act states that essentially there is a medical or social need if:

If there is only one intended parent, the intended parent is a man or an eligible woman.

If there are two intended parents, the intended parents are:

  1. A man and an eligible woman
  2. Two men; or
  3. Two eligible women.

The Act then defines an eligible woman as a woman who is:

  1. Unable to conceive a child on medical grounds;
  2. Is likely to be unable to, on medical grounds, to carry a pregnancy or to give birth; or
  3. Is unable to survive a pregnancy or birth, or is likely to have her health significantly affected by a pregnancy or birth; or
  4. if she were to conceive a child, she is likely to conceive a child affected by a genetic condition or disorder, the cause of which is attributable to the woman, or is likely to conceive a child who is unlikely to survive the pregnancy or birth, or whose health would be significantly affected by the pregnancy or birth.

The requirements essentially mean that unless the intended parents are gay, a comprehensive medical report is require from a doctor or treating specialist showing that the female intended parent (or female intended parents – both of them) have medical reasons that prevent them from having a child naturally.

It is important then that if you are a woman looking to enter into a surrogacy arrangement, that you first get a report from your doctors – preferably an obstetrician or gynecologist – supporting that you have a medical need for surrogacy.

That being said, reports from other specialists can assist. For example, we once assisted a client who relied on a report by her cardiologist, who stated that our client’s medical condition resulted in a weak heart, had a history of having cardiac arrests, and as a result she would not likely survive a pregnancy due to the increased strain a pregnancy has on the human heart.

Ultimately, you should discuss the matter with your doctors before undertaking this endeavour.

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

Written by Kenneth Ti.

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