Do surrogates receive any lump sum payments from the intended parent/s?

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Starting a family may be more difficult for some than others. Individuals may need to consider entering into a surrogacy arrangement due to fertility issues or other medical concerns.

Choosing to be a surrogate can be an extremely rewarding experience. However, there can be numerous emotional and financial costs of surrogacy. Naturally, the intended parent/s may feel the need to reimburse the surrogate for carrying and giving birth to their child.

However, it is a criminal offence to pay someone in exchange for them carrying and giving birth to a child. This is what is known as a commercial surrogacy arrangement and these types of arrangements are illegal in NSW. Parties must ensure they have entered into an altruistic surrogacy arrangement.

It is important to note that whilst a surrogacy arrangement is not enforceable, the obligations under the surrogacy arrangement to pay or reimburse the surrogate’s costs are enforceable.

Under NSW legislation, parties to a surrogacy arrangement can reimburse a surrogate for reasonable costs such as:

• Medical costs associated with the pregnancy or birth.
• Travel or accommodation costs associated with the pregnancy or birth.
• Any premium paid for health, disability or life insurance that would not have been obtained by the surrogate, had the surrogacy arrangement not been entered into.
• Medical costs associated with the child of the surrogacy arrangement.
• Cost of reimbursing the surrogate for a loss of earnings as a result of unpaid leave taken by them, for a period of up to 2 months during which the birth happened or was expected to happen, or any other period the surrogate was unable to work on medical grounds related to pregnancy or birth.
• Medical, travel or accommodation costs associated with becoming or trying to become pregnant.
• Costs for the surrogate and the surrogate’s partner (if any) for receiving counselling in relation to the surrogacy arrangement.
• Costs for the surrogate and the surrogate’s partner (if any) for receiving legal advice in relation to the surrogacy arrangement or a parentage order.
• Costs for the surrogate and the surrogate’s partner (if any) for being a party to proceedings in relation to a parentage order, including reasonable travel and accommodation costs.

The surrogate’s costs will only be found to be reasonable if the cost is actually incurred and the amount can be verified by receipts or other documents. It is important to note that medical costs do not include any costs that are recoverable under Medicare or any health insurance or other scheme.

Notably, the intended parent/s cannot make any lump sum payments to surrogates for consideration for entering into the surrogacy arrangement.

If the intended parent/s do make a lump sum payment to a surrogate for carrying and birthing their child which is not a reasonable cost listed above, the intended parent/s may be committing a criminal offence.