Commercial surrogacy is not available in Australia, and while it is an expensive option, there are a number of gay couples in Victorian who have travelled to use overseas fertility clinics to create their family.

Even if altruistic surrogacy in Victoria sounds like a great option to you, it might well be very difficult to find both an egg donor and surrogate.

Commercial surrogacy – whereby the surrogate is paid a fee beyond the cost of her medical bills – is illegal in Australia. However, you might be able to consider using the services of a commercial surrogacy service in another country. For some men, this is their preferred option.

There are gay couples and single men in our community who have created their families through commercial surrogacy services in countries including Canada, the United States and India. The costs can vary, but at the time of writing they ranged from approximately $40,000 to $200,000. The fees paid to women who act as surrogates do not make up a large proportion of these costs; the remainder goes to the clinics, lawyers, medical fees and egg donors (if used).

It may be possible, in some countries and jurisdictions, to access ‘traditional’ surrogacy, where the surrogate uses her own eggs. It is more common to be able to access only ‘gestational’ surrogacy, using donor eggs. This is generally more expensive, as it requires complex medical procedures and usually a fee to the egg donor.

The medical procedures involved in conception through commercial surrogacy are pretty much as described under the section on Victorian altruistic surrogacy, although there might be considerable differences in the way that IVF procedures, for example, are managed in different countries. If ‘traditional’ surrogacy is offered, conception is (usually) achieved through the simpler process of artificial insemination, unless there are fertility problems, for example with the biological father’s sperm.

There are, however, many other procedures involved in overseas surrogacy. They include the contract process, choosing a donor, the surrogate matching process, consultation and sperm donation with the clinic, and the potentially complex procedures around obtaining a birth certificate, citizenship and passport for your child to bring them home. You can find much more detail about the extensive procedures involved with commercial surrogacy on the Gay Dads Australia website (see Social and Support Groups) . It is also well worth talking to men who have been through the process before you begin your own journey.

Contact with your donor and surrogate

Some men who conceive through commercial surrogacy are able, and choose, to have ongoing contact with their surrogate after the child is born. Women who choose to do commercial surrogacy generally have very altruistic motivations, and are often interested in some form of ongoing contact with the families they helped create, for example through the occasional exchange of emails and photos.

However, there may not be the option of a relationship with your donor, if you use gestational surrogacy and an egg donor. Although you will often receive very detailed biographical and medical information about your donor from the donor agency, clinic-recruited egg and sperm donors may have agreed to complete anonymity when they donate (as in many clinics in the US). This means that children will generally have no option for obtaining identifying information about their donor. This might be an issue to consider in choosing a clinic. Check the websites of relevant surrogacy services and donor agencies, or contact them for details of their policy and the relevant laws where they operate.

Recognition of parentage

Some countries where commercial surrogacy is available can provide birth certificates listing both fathers, while others do not. Even where this is possible, it does not at present translate into legal parentage in Australia.

Gay male couples whose children were conceived via overseas surrogacy – whatever their birth certificates states about parentage – currently require court parenting orders to recognise the parenting role of both the biological and non-biological father. These parenting orders continue (although they may need some amendment) if a couple separates. See below under ‘If relationships break down’.

Parenting orders can allow you to consent to things like school excursions or medical treatment. All parties who have parenting responsibilities under court order are required to give their consent for a child to obtain a passport. Parenting orders can include many rights and responsibilities of legal parentage, but end at age 18, and don’t include things like inheritance and superannuation in most situations. So it is important for those who require parenting orders to, for example, ensure they specifically recognise children in their wills and seek legal advice about choices in relation to making financial provision for children (including a choice not to make provision, which may be subject to legal challenge in very limited circumstances, even if you are not a legal parent).

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