The 2008 and 2009 reforms did not change the legal situation for people who create their families through overseas surrogacy.

The Victorian Assisted Reproductive Treatment Act 2008 (ART Act) opened up ‘altruistic’ (unpaid) surrogacy in Victoria as an option for gay men to become parents, and allowed for recognition of parents (including both partners in a gay male couple) of children conceived this way. See Options for gay male prospective parents for details.

Commercial surrogacy is illegal within Australia. However, some gay couples and single men create families through overseas commercial surrogacy services. Some countries where this is available can provide birth certificates listing both fathers, while others do not. Even where this is possible, this does not at present translate into legal parentage in Australia. Fathers whose children were conceived via overseas surrogacy – whatever their birth certificates state about parentage – currently require court parenting orders (see above) to recognise the parenting role of both the biological and non-biological father in Australia. These orders would continue (although they may need some amendment) if a couple separates. Refer to Options for prospective gay male parents and Gay Dads Australia’s website for details.