Surrogacy Law in Practice: Understanding the Tasmanian Framework

As surrogacy becomes an increasingly common path to parenthood, legal practitioners are seeing a rise in clients seeking advice on how to navigate the legal and practical complexities of surrogacy arrangements. With this notable increase in family law matters involving surrogacy, it is helpful to explore the nuances of the Surrogacy Act 2012 (Tas) and its intersection with the Family Law Act 1975 (Cth).

This article is based on the authors’ legal research and practical experience advising intended parents and surrogates. Surrogacy matters are primarily regulated by state legislation. There are slight variations between each state/territory, so it is vital to recognise which jurisdiction is applicable to your client’s case as a first step in the surrogacy matter. This article focuses on the Tasmanian surrogacy legislation but includes reference to Victorian provisions by way of comparison.

Surrogacy in Two Stages
Under the Tasmanian framework, the surrogacy process can be conceptually viewed in two distinct stages:

1. Pre-pregnancy to 30 days post-birth: This is the period in which the surrogacy arrangement applies (an agreement between the intended parents and birth mother), and pregnancy takes place.
2. From 30 days to 6 months post-birth: During this stage, intended parents may apply to the Magistrates Court for a parentage order, which legally recognises them as the child’s parents.

It’s critical to understand that the arrangement must be in writing by the time the parentage order is sought. Although the Act allows oral arrangements to exist earlier in the process, a written agreement is a precondition for obtaining a court order – an inconsistency between the two processes in the legislation. It is ideal practice to draft and execute a written agreement between the parties before pregnancy. Please note that in this article the terms ‘surrogacy arrangement’ and ‘surrogacy agreement’ are used interchangeably and refer to the agreement between the parties.

Key Parties in a Surrogacy Arrangement
Several parties may be involved in a surrogacy arrangement:

• Intended parents: May be a couple or single person, with any gender configuration or sexual orientation. In practice, we often see same-sex male couples, but arrangements also include heterosexual and same-sex female couples, or single applicants. Intended parents must be parties to the surrogacy arrangement.
• Birth mother (surrogate): Defined by the Act as the person who becomes pregnant and gives birth under the arrangement. The birth mother must be a party to the surrogacy arrangement.
• Birth mother’s spouse: could be de facto or married spouse. The spouse may be a legal parent at birth, and their consent is relevant at the parentage order stage. The birth mother’s spouse does not need to be a party to the surrogacy arrangement under the legislation, but when applying for the parentage order, the legislation classifies the birth mother’s spouse as a relevant party to the arrangement. We therefore advise that the birth mother’s spouse be included as a party to the surrogacy arrangement when first drafted.
• Donors: If the intended parents are not contributing their own biological material, egg or sperm donors may also be one of the other parties to the surrogacy arrangement. However, donors are often not included because in many arrangements, embryos have already been created prior to the intended parents finding a person willing to act as the birth mother. It is generally not the case that the birth mother’s own eggs are used to create embryos. Fertility clinics often require biological separation between birth mother and egg donor to avoid future legal complications.
• Medical providers and IVF clinics: These institutions have their own internal policies. For example, many will not proceed with embryo transfer unless a written surrogacy agreement is provided, even though the Act does not mandate it until the post-birth application. The medical providers are not required to be a party to the agreement but it is generally helpful to take the providers’ internal policies or requirements into consideration.
• Surrogacy counsellor: the intended parents, birth mother and birth mother’s spouse must receive counselling prior to signing a surrogacy arrangement and post birth but prior to the parentage order application. The counsellor must be registered with Births Deaths and Marriages as being qualified to provide counselling for surrogacy matters. Our practice is to annex a certificate by the counsellor to the surrogacy arrangement as proof of completion. The parties can all engage the same counsellor.
• Legal practitioners: the parties to the surrogacy arrangement must have independent legal advice before entering into a surrogacy arrangement. Our practice is to annex a certificate of legal advice from each practitioner to the signed arrangement.

Defining Legal Parentage
At birth, the birth mother is always considered the legal mother of the child, regardless of any genetic relationship. The identity of the legal father/other parent is dependent on the assumptions of parentage laws. The birth mother’s spouse may also be a legal parent under state law. If one of the intended parents is also a biological parent – typically the sperm donor – they may or may not be recognised as a legal parent, depending on who is registered on the birth certificate.

The current High Court authority on parentage, Masson v Parsons, confirms that federal law, namely the Family Law Act 1975, determines parentage in family law matters if there is any inconsistency with state laws.

Eligibility for a Surrogacy Arrangement
Section 16 of the Act is the key section outlining requirements for a parentage order. This needs to be considered when first meeting with the client and drafting the surrogacy arrangement.

The Magistrates Court does not have jurisdiction to make a parentage order if:

1. The surrogacy arrangement is deemed to be commercial (commercial arrangements are illegal in Australia); or
2. The intended parents were below 21 years of age when the surrogacy arrangement was entered into by the parties; or
3. The birth mother or the birth mother’s spouse do not consent to the parentage order; or
4. Both intended parents do not consent to the parentage order.

The discretionary requirements include:

• That the birth mother was 25 years old at the time of the surrogacy arrangement was entered into and had previously given birth to a live child.
• The parties were residing in Tasmania when the surrogacy arrangement was entered into.
• The child is living with the intended parents when the parentage order application is heard.
• The intended parents are resident in Tasmania when the parentage order application is heard.
• The surrogacy arrangement was in writing.
• That all the parties consent to the parentage order.
• That the parties received independent legal advice and counselling.
• There is a medical or social need for the surrogacy.

For male-male couples, the need is presumed. For arrangements involving one or more women, the female intended parents must demonstrate that they cannot conceive or carry a pregnancy without significant risk to their physical or mental health. We suggest you annex a letter to the surrogacy arrangement from the woman’s medical practitioner certifying her medical need.

The Act’s gendered language presents complications when advising transgender clients, particularly in determining eligibility.

If any of the discretionary requirements are not met when applying for a parentage order, the Magistrates Court can still make a parentage order if it is in the child’s best interests to do so. However, it will be harder for the parties if one of the discretionary requirements is not met so it is important to consider all of these factors when first meeting with the client and give appropriate advice.

Drafting the Surrogacy Agreement
While the Act provides little detail about what a surrogacy agreement must include, we suggest drafting a comprehensive agreement that covers more than the statutory minimum. A well-drafted agreement should include:

• Identification of all relevant parties and their relationship to each other.
• Confirmation of counselling and independent legal advice for each party.
• Arrangements around pregnancy management, including decisions about medical treatment and the birth.
• Financial arrangements covering the surrogate’s legal and medical expenses, including loss of earnings.
• Clear acknowledgement of the birth mother’s autonomy during pregnancy, including the right to terminate.

Enforcement and Conflict

• The agreement cannot be enforced except in regard to reimbursable expenses defined in the Act. This includes medical costs, legal fees, and lost income due to pregnancy-related leave. Any payments outside these bounds risk being characterised as a commercial surrogacy arrangement, which is illegal under Tasmanian law. It is very important to give clear advice about these risks and take a cautious approach to any financial exchanges between the parties.
• As such a surrogacy arrangement is not a typical contract, the intended parents have no rights to enforce the surrogacy arrangement. However, they can make an application to the Federal Circuit and Family Court for parenting orders should a dispute arise, which has been noted by the judiciary as having a flavour of enforcement (Ticknor and Rodda [2021] FedCFamC1F 279).
• The Family Law Act 1975 (Cth) provides a means to circumvent the restraints imposed in the Surrogacy Act 2012 (Tas). For example, if the surrogacy arrangement is found to be commercial, the Family Courts can still make a parenting order in favour of the intended parents if it is in the child’s best interests (see Seto & Poon [2021] FamCA 288). However, as with the recent case of Llyod & Compton [2025] FedCFamC1F 28, the Court may refer the parties to the prosecution for engaging in commercial surrogacy.
• The Family Law Act 1975 (Cth) is limited in terms of the parentage orders that can be made. Please note that parentage orders are different to parenting orders. A parentage order is a declaration of legal parentage of the children. A parenting order does not determine legal parentage, rather it provides for decision making responsibility and care arrangements for the child. The key difference is who is named on the child’s birth certificate. For example, based on the case law, the Family Courts cannot remove the birth mother from the child’s birth certificate even if the intended parents have full decision making responsibility and full time care. This appears the case even where the intended mother was the egg donor and the child is her biological child (Lamb and Shaw [2017] FamCA 769; Seto & Poon [2021] FamCA 288; Ticknor and Rodda [2021] FedCFamC1F 279). It also appears that the Court cannot add a non-biological father to the child’s birth certificate.
• Practitioners should also be alert to jurisdictional inconsistencies between states. For example, in Victoria, no written surrogacy agreement is required for a parentage order, but prospective parties must gain approval through a pre-conception review board.

Counselling Requirements are Another Area to Watch
While both states require pre-surrogacy counselling, Tasmanian law does not demand assessment of mental health history or its potential impact. Yet, as the cases above demonstrate, undisclosed psychological vulnerabilities can be highly disruptive. A deeper professional awareness of these limitations should shape both advice and documentation practices.

In Conclusion
While the Act outlines a two-stage process, the initial surrogacy arrangement followed by a parentage order, these stages are not always aligned in practice and there is inconsistency between the requirements at each stage within the Act. For legal practitioners, this means that advice at the outset must extend beyond the arrangement phase and carefully anticipate the hurdles in obtaining a parentage order.

July 2025
Amelia Higgs, Principal
Aimee Hope, Lawyer
Dobson Mitchell Allport