Sperm donor, surrogacy and co-parenting laws in Australia

There is lack of harmonization to regulate Assisted Reproductive Technologies, egg and sperm donation and LGTB parenting rights in Australia. Some States like Victoria, New South Wales or Queensland have passed comprehensive laws regarding one or the other, while others like South Australia are much more conservative. Yet the general trend is moving towards a greater acceptance of same sex couples parenting rights and their access to artificial insemination and other reproductive technologies. And egg and sperm donation can still be anonymous in some States, but it seems that identifying information will be more and more required everywhere. Altruistic surrogacy has just been legalized but still requires a national regulating frame. Coparenting, especially when more than 2 people are involved, is still in the limbo.

Donor Conception (embryo, egg and sperm donation) in Australia


Although no Commonwealth legislation covers the regulation of ART (Assisted Reproductive Technology) clinical practice, the RTAC (Reproductive Technology Accreditation Committee) administers a system for the accreditation of ART clinics. The ART Accreditation applies countrywide.

Specific legislations apply in WA/VIC/NSW/SA.Donor conception practices in Australia / Source: Parliament of Australia, Senate

Accredited ART Units: fertilitysociety.com.au

Assisted Reproductive technology (artificial insemination, IVF, etc.)

In most Australian states, IVF and artificial insemination services are granted to single and lesbian women, with no need to prove their infertility.

Local specificities / exceptions: Some restrictions still persist in a few states (SA)Ethical guidelines on the use of assisted reproductive technology in clinical practice and research (ART guidelines), 2007: nhmrc.gov.au

Laws in Australia / Gaylawnet: gaylawnet.com


Self-insemination by a woman at home is not illegal if undertaken for free, yet it is not regulated either.Assisted insemination, the law and you / Department of Health, Government of SA: sahealth.sa.gov.au

Self-insemination / VIC Law reform commission: lawreform.vic.gov.au

Identifying information on embryo, egg and sperm donors

According to ART Guidelines, persons conceived using ART procedures are entitled to know their genetic parents. More generally, voluntary exchange of information between all parties, is desirable. Egg or sperm donations by a known person are allowed in Australia.
Local specificities / exceptions: Access to identifying information varies according to states and date of donor conception.Donor conception – state and territory legislative regimes and access to information / Source: Parliament of Australia, Senate

Paid or freem sperm donors?

While there is a prohibition on commercial trading in human gametes and embryos, 'reasonable expenses' are allowed to donors to cover costs incurred in making a sperm donation. However, the term 'reasonable expenses' is not defined and vary from one clinic to another.Payments for donors / Source: Parliament of Australia, Senate

Surrogacy in Australia

Altruistic surrogacy

Altruistic surrogacy has recently become legal in Australia, and prior counselling is a legal requirement. Still, a national model is yet to be approved to harmonise the regulation of surrogacy.

Local specificities / exceptions:
Exception: TAS bans all surrogacy under the Surrogacy Contracts Act 1993.Counselling: Australian and New Zealand Infertility Counsellors Association (ANZICA): fertilitysociety.com.au

Commercial surrogacy

Arranging commercial surrogacy is a criminal offence in any Australian state. Advertising for surrogacy is also banned almost everywhere.

Local specificities / exceptions:
NT has no legislation governing surrogacy.

Surrogacy abroad

Surrogacy arrangements agreed abroad are generally unenforceable, but not banned either in most States.

Local specificities / exceptions:
Could be considered illegal in some States.

Can gay dads have a surrogate child?

For gay couples resorting to surrogacy where it is allowed, parentage needs to be ordered by the State.

Local specificities / exceptions:
QLD is one of the most advanced states since the approvement of the Surrogacy Act (2010). SA does not authorize surrogacy for gay couples.Surrogacy Act 2010 Queensland / Source: Queensland Government: legislation.qld.gov.au

Statutes Amendment (Surrogacy) Act 2009 / SA Legislation: legislation.sa.gov.au

Adoption in Australia

Access to general adoption

Singles can adopt anywhere in the US, but married couples prove to be widely preferred by adoption agencies. LGTB access to adoption vary, but they may adopt as singles in almost any state.

Local specificities / exceptions:
Same-sex couples can adopt jointly in AR, CA, CO, CT, DC, IL, IN, IA, ME, MA, NV, NH, NJ, NY, OR, VT, WA. No homosexual may adopt in FLAustralian Adoption Guidelines: State by State / Source: Australian LGTB Law blog: lgbtlawblog.blogspot.com

Step child adoption for same sex couples

No federal legislation exist regarding step parent adoption in a same sex couple.

Local specificities / exceptions:
Only legal in NSW, WA, ACT and TAS.Adoption and laws relating to having children / LGTB Parenting, Wikipedia: en.wikipedia.org

Co-Parenting in Australia

Only 2 co-parents involved

The Section 60H of the Family Law Act 1975 creates a relationship of parent and child between the woman who gave birth to the child and her husband or de-facto partner (including same sex) at that time. This is the case even if another man is the biological father or another woman is the biological mother (under, for example, surrogacy arrangements)

Local specificities / exceptions:
As the laws regulating reproductive technology and surrogacy are dealt with by the States and Territories, same sex co-parent legal recognition also vary. Still, lesbian couples having conceived a child through an assisted conception procedure are today very likely to be both recognized as parents of their child anywhere in Australia.Section 60H: Children born as a result of artificial conception procedures / Source: Family Law Act 1975: comlaw.gov.au

Same sex couples and child support / Australian Government through Child Support Agency (CSA): csa.gov.au

More than 2 co-parents involved (e.g. 1 couple + 1 single or 2 couples)

Private arrangements involving donor conception are not regulated and only 2 parents of the same child can be recognised. Parenting plans or orders might be issued to fill in some legal gaps, but are unlikely to cover all parenting rights.Becoming a Parent / Over the Rainbow, VIC: hrc.org

List of the States and abbreviations: New South Wales: NSW; Australian Capital Territory: ACT; Western Australia: WA; Tasmania: TAS; Queensland: QLD; Victoria: VIC; Northern Territory: NT; South Australia: SA



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