The concept of surrogacy is that a woman (the birth mother) agrees to become pregnant with a child in whose life she will relinquish her role and rights as a parent.

In Queensland surrogacy became possible with the Surrogacy Act which came into effect on 1 June 2010.  Commercial surrogacy arrangements are prohibited.  That is an arrangement where a person (it could be the birth mother or another person) receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother's costs of the surrogacy and birth).

The person or couple who agree to accept the child (the intended parent/s) will become permanently responsible for the custody and guardianship of the child.  The intended parent/s can be one person or two people, including people of the same sex.

For the arrangement to meet the requirements of the Queensland legislation:-

1. There must be a written surrogacy agreement between the birth mother and the intended parent/s.  If the birth mother is married her husband must also sign the agreement.  
2. All persons signing the surrogacy agreement must be at least 25 years of age;
3. Before signing the surrogacy agreement:- 

   (a) the birth mother and, if married, her husband must receive legal advice from a lawyer; 

   (b) all of the intended parties to the arrangement, the birth mother, her spouse (if any) and the intended parents must receive counselling from an appropriately qualified counsellor about the surrogacy arrangement and its social and psychological implication;

4.  Not earlier than 28 days and not later than 6 months after the child’s birth the intended parent/s must bring an application in the Children’s Court. If satisfied about the matters detailed below the Children’s Court can make what is called a parentage order.  The effect of that parentage order is that the child becomes a child of the intended parent or parents and stops being the child of the birth mother.

The reason for the legal involvement of the birth Mother's Husband, even though he may not be the biological father of the child is the legal presumption that where a child is born to a married woman, her husband is the child’s father.  That presumption does not apply to de-facto partners.  

At a child’s birth, a mother (and her husband if she is married) is the child’s legal guardian and custodian. The surrogacy agreement does not alter this position.  Those rights and obligations do not change unless and until a parentage order is made.  For a Children’s Court judge to make a parentage order they must be satisfied about all of the following matters:-

1. The parenting order will be for the wellbeing, and in the best interests, of the child; 
2. The child must have been living with the intended parent/s for at least 28 consecutive days before the Application was made as well as at the time of the application and at the time of the hearing; 
3. There is a medical or social need for the surrogacy arrangement;
4. All parties to the surrogacy agreement were at least 25 years of age when the agreement was made;
5. The intended parents, the birth mother and the birth mother's spouse consent to the making of the parentage order at the time of the hearing;
6. There has been a report about the following matters prepared (a surrogacy guidance report) by an independent and appropriately qualified counsellor who has interviewed all of the relevant persons:-

   (i) Each of the relevant persons understanding the implications of the parenting order and the honesty of the parties about the arrangement being for the wellbeing and in the best interests of the child;

   (ii) The care arrangements that are proposed for the child by all of the relevant parties;

   (iii) Whether making a parentage order would be for the wellbeing, and in the best interests of the child.