Our Passion: helping you on your journey to parenthood

Fertility Law

family and fertility lawyers

How we can help

We have the honour and privilege of helping our clients achieve their dream of becoming parents.

To become a parent, you may need an egg donor, a sperm donor or a surrogate, or maybe all three. The very complex law in this area is not handled by most family lawyers. There is a lot of inaccurate information on the internet. If not done correctly, you may not have a child. You may not be recognised as a parent. You may fight it out in the Family Court. You may end up committing several criminal offences.

We work with our clients and with experts here and overseas to ensure that our clients can become parents as quickly, cheaply and hassle free as possible. This includes looking at alternative solutions to solve the problem or problems – solutions often not thought of by our clients or by others.

Page Provan are the leaders in fertility law in Australia

We have advised clients about surrogacy, egg, sperm and embryo donation throughout Australia and 30 countries overseas. We deal with local, national and international surrogacy and donor issues week in, week out, and have unique contacts with lawyers and health professionals here and overseas.

Our focus is to make the journey to parenthood as smooth as possible, while making our clients aware of potential pitfalls and legal risks. We will answer all your questions from beginning to end! We give honest, objective and clear advice to enable you to make informed decisions. In the minefield that is fertility law in Australia, we take pride in getting it right first time.

Our Passion

Our Fertility team

Our team is led by partner Stephen Page.

The media has named Stephen as one of Australia’s leading surrogacy lawyers. Stephen is one of three international representatives on the ART committee of the American Bar Association, a member of the Parentage/Surrogacy and LGBT Committees of the International Academy of Family Lawyers, a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys, a member of the Fertility Society of Australia as well as being a member of various family law associations.

Our Passion Stephen Page

Stephen Page

Stephen has presented extensively at local, national and international conferences (and written widely) about surrogacy and fertility law. His first surrogacy case was in 1988. Career highlights include presenting at the world’s first international surrogacy conference in Las Vegas in 2011, and obtaining a world first precedent in 2012 as to what constituted “conception”. He was the convenor of Queenslanders for Equality, which successfully lobbied to stop the Queensland government enacting discriminatory changes to Queensland’s surrogacy laws.

Where our fertility law clients have come from

Our team has helped clients from our big cities to some of the most remote parts of Australia- from the Pilbara to Hobart; the countryside of South Australia to far north Queensland- and most places in between. In addition, we have helped clients located all over the world:

  • Australian Capital Territory
  • New South Wales
  • Northern Territory
  • Queensland
  • South Australia
  • Tasmania
  • Victoria
  • Western Australia
  • Brazil
  • Canada
  • USA
  • Belgium
  • Denmark
  • France
  • Germany
  • Ireland
  • Italy
  • Netherlands
  • Russia
  • Switzerland
  • UK
  • Iran
  • Israel
  • UAE
  • China
  • India
  • Indonesia
  • Japan
  • Malaysia
  • Philippines
  • Singapore
  • South Korea
  • Thailand
  • New Caledonia
  • New Zealand
  • Papua New Guinea
  • Solomon Islands

Contact Us For Expert Fertility Assistance

We have the honour and privilege of helping our clients achieve their dream of becoming parents

Fertility Law FAQ’s

Do I need a lawyer when I want to have a child through surrogacy?
The simple answer is yes. If you are undertaking surrogacy in Australia, State law requires each side to have independent legal advice from an Australian legal practitioner (but in South Australia, the advice needs to be from a barrister or solicitor admitted to the Supreme Court of South Australia. Our Partner Stephen Page is admitted as a barrister and solicitor of the Supreme Court of South Australia).

Surrogacy is the most complex way of becoming a parent. International surrogacy is the most complex form of surrogacy. With an international surrogacy journey, it is wise to have legal representation at both ends. If you or your child is entitled to multiple citizenships, then further international representation might be desirable. We can refer you to surrogacy lawyers in most places around the world, to help you on your journey to become parents.

Do we need a lawyer when we have a known sperm donor?
When there is a sperm donation by a known sperm donor to a single woman or a couple, there can be uncertainty about his role- and if not handled carefully, there can be a terrible court case.

It is wise to plan these arrangements very carefully. Having expert legal advice at the beginning sets out both the risk of something going wrong and ways of minimising that risk.

When buying a house, it is not compulsory to check whether the house might have a termite infestation. However, a wise purchaser will have an expert check over the home and get a clearance first before proceeding with the sale. Obtaining advice about a proposed sperm donor arrangement is not expensive and pales into insignificance with potential legal costs in the Family Law Courts if something goes wrong.

Can I use my late husband’s sperm to become pregnant or via surrogacy?
The posthumous use of gametes (i.e. sperm and eggs) or embryos is very tricky. Each State has different rules. You may be able to use the sperm. It depends. You are best checking with us first. We have handled a number of cases when our clients were told elsewhere that they couldn’t use the sperm- but with our assistance and medical help then went on to become mothers.
Do you know anything about the law where I live?
Yes we do! We are experts on fertility law across Australia. We have advised clients in every Australian State and Territory – in every capital city and in many regional and rural areas, from the wheat belt of Western Australia, to Launceston, rural Victoria, to the far south coast of New South Wales, from rural South Australia to Byron Bay and Cairns.

Many years ago, Queensland was the only State that criminalised all forms of surrogacy. In those days, our partner Stephen Page was asked by clients:

“If we can’t do surrogacy here, where can we do it?”

This meant that he had to become expert about surrogacy laws Australia wide.

From the beginning, we have become expert at fertility laws Australia wide. We have also advised clients from 30 countries overseas from as far afield as the US, Malaysia, Hong Kong, Solomon Islands and Brazil.

We have also acted for IVF clinics and sperm and egg banks.

Is surrogacy legal in Australia?
Yes, it is. In Australia it’s legal to do non-commercial surrogacy, called altruistic surrogacy. Each State and the ACT have laws regulating surrogacy.

The Northern Territory has no laws about surrogacy. In practice for a number of reasons, this means that NT residents typically go overseas or interstate.

Isn’t it illegal to go overseas for surrogacy?
No, it’s not. It is illegal in Queensland, New South Wales and the ACT to go overseas for commercial surrogacy. It is open to interpretation whether it is illegal in South Australia to go overseas for commercial surrogacy. In some circumstances in Western Australia it is illegal to go overseas for commercial surrogacy.

It’s legal for those residing in Victoria, Tasmania and the Northern Territory to go overseas for commercial surrogacy.

What is commercial surrogacy?
There is no consistent definition. What is commercial surrogacy varies State by State. For example, an agreement that would be considered in Queensland to be altruistic (and legal) surrogacy may well be commercial (and illegal) surrogacy in Victoria.
Have you done surrogacy for people where I come from?
If you live in Australia, yes. We have advised clients about both domestic and international surrogacy wherever they might live in Australia. We have also advised clients who have lived in 30 countries overseas. We liaise and work closely with overseas lawyers so as to make that advice as seamless as possible.
Do I need a surrogate from around here?
Maybe. If you live in Tasmania or the ACT, your surrogate must come from that place. Elsewhere, the surrogate is not restricted to your home State. However, there may be practical and legal restrictions about where your surrogate comes from that should be carefully considered at the commencement of your journey. The sooner we can give advice, the better.
We are at the very start of our journey to become parents. What happens next?
It depends on whether you are going through egg/sperm/embryo donation or surrogacy or even both. The journey of every intended parent is unique. In our first meeting with you, we will identify what you want to achieve and then set out viable options to enable you to get there. Our aim is to make your journey to parenthood as quick and as stress-free as possible.
We don’t live in Brisbane. How can we have a meeting with you?
Only a relatively small number of our clients live in Brisbane. Most of our clients live interstate or overseas. Typically we would use an app like Zoom or Skype for the first meeting or, if you prefer, the phone.
Do I have to do IVF here for surrogacy?
If you are on a domestic surrogacy journey, the answer is maybe, depending on the local law in your State. In Queensland, New South Wales and Tasmania, IVF doesn’t have to happen locally – but there might be great reasons, including convenience and cost, for doing it locally.

In the ACT, Victoria, South Australia and Western Australia some or all of the IVF needs to be done locally.

None of the IVF can occur in the Northern Territory, so Territory residents need to go somewhere else.

Australia is one country. Surely the same rules apply across the country?
No, they don’t. Assisted reproductive treatment, egg/sperm and embryo donation and surrogacy are primarily regulated at a State and Territory level. These laws are broadly similar but as often happens with the law, the devil is in the detail. You are best checking with us before proceeding.
If we are overseas, can we commit an offence to do with surrogacy and egg donation in Australia?
Yes, you may commit an offence to do with egg/sperm or embryo donation in Queensland, New South Wales, ACT, South Australia, Western Australia and the Northern Territory – if you are temporarily overseas.

You may commit a surrogacy offence in Queensland, New South Wales, the ACT and Western Australia if you are temporarily overseas.

If you are living overseas but not domiciled there, you may commit an offence to do with surrogacy under New South Wales law if you are domiciled in New South Wales.

Is it lawful to advertise for an egg donor?
It varies. In Victoria, for example, it is illegal to advertise for an egg donor without approval of VARTA. In New South Wales, for example, it is legal to advertise for an egg donor.
Is it legal to advertise for a surrogate?
Generally it is illegal to advertise for a surrogate, but it may be legal to find a surrogate on a Facebook forum. It varies with local law.

It is legal in the Northern Territory to advertise for a surrogate – but IVF and transfer of parentage are not available.

My mother/friend/aunt/sister-in-law has offered to have a baby for us. Can she?
Yes – provided that she is medically and psychologically suitable, in Victoria that there are no criminal history or child protection history concerns and it is an altruistic surrogacy.
What is surrogacy?
This is when a woman has a baby for someone else, hands over the baby and in the process transfers parentage (either from the woman herself or the woman and her partner) to the intended parent or parents. Surrogacy is a legal process. Assisted reproductive treatment (such as IVF) is a medical process.
What is traditional surrogacy?
The woman is not only a surrogate for someone else but also the genetic mother.
What is gestational surrogacy?
The woman who is the surrogate has no genetic link with the child. She is pregnant and therefore gestates a baby who is genetically someone else’s.
Is traditional surrogacy legal?
Yes – except in Victoria through an IVF clinic. Traditional surrogacy at home in Victoria is legal. Whether it is wise is another matter.

IVF clinics may decline to treat because of concerns that the surrogate may not give up the baby. We help clients identify surrogacy options that are right for them, appropriate clinics and identify and deal with risk factors with traditional surrogacy – to minimise risk.

What is the point of having a sperm donor agreement?
Prevention is better than cure. Minimising risk. A sperm donor agreement won’t eliminate risk but will reduce the level of risk in something going wrong. There have been catastrophic cases before the Family Law Courts where arrangements have gone terribly wrong.
When we bring our child back home to Australia, surely we are the parents?
Unfortunately, there is no consistent Federal and State rule about who is a parent. You may be a parent for some purposes, such as citizenship but not for other purposes, such as family law and inheritance. Every case is different, in part depending on where you live and the formal nature of the surrogacy journey that you have completed.
Does the law apply to me when I live in Australia but I am not an Australian citizen?
Yes it does.
I am single. Is surrogacy available to me?
Currently it is not available to you in the ACT, South Australia or if you are male, in Western Australia. There are proposals to change the law to remove this discrimination in South Australia and Western Australia, but they have not yet been enacted.

Surrogacy is not available in effect in the NT for people living there- due to a lack of laws. Other surrogacy options may be available.

We are in a same-sex relationship. Can we do surrogacy?
Yes – except if you are a male couple living in Western Australia. Currently there is a bill before the Western Australian Parliament to remove this discrimination, but it has not yet been enacted.

Surrogacy is not available in effect in the NT for people living there- due to a lack of laws. Other surrogacy options may be available.

Where can I go for overseas surrogacy?
Many intended parents go overseas due to a lack of surrogates in Australia or because they are going back to their homeland. Going overseas is complicated and needs to be planned carefully.The sooner we give advice, the better. There are a number of factors to be taken into account:

  • Legal settings overseas – to make sure that you are recognised as the parents, and that the human rights of the surrogate and baby are protected.
  • Quality and reliability of IVF.
  • Exchange rates and cost of the surrogacy journey.
  • Health care costs overseas.
  • The ease or difficulty in having your child come back to Australia.
  • Whether your journey overseas is lawful in that country.
  • Whether the surrogacy journey is commercial surrogacy and therefore may be a criminal offence at home.
I live in Sydney but I am not an Australian citizen. Can I do surrogacy overseas?
The same rules apply to you as anyone else. You should have no difficulty ultimately in having your child live in Australia with you. We will refer you to a migration agent to assist so that you can receive the right advice about the appropriate visa for your child.
How old do I have to be to become a parent through surrogacy?
The rules in each State vary, but commonly 25 is the youngest age. In some States this can be lowered if there is demonstrated maturity.
How old does the surrogate have to be?
The rules in each State vary, but commonly 25 is the youngest age. In some States this can be lowered if there is demonstrated maturity.
How old is too old to become a parent through surrogacy?
Clinics are bound by the Age Discrimination Act 2004 (Cth), but also there may be rules requiring them to take into account the best interests of a child. We have had clients who have been refused treatment in Australian clinics when they are aged in their mid-50s. Overseas clinics may or may not treat.
What is the oldest the surrogate can be?
This depends on medical science. Just because a woman is in her 20’s may not make her suitable medically to be a surrogate. Older women who are pregnant have greater rates of things going wrong during the pregnancy, including their death and the death of the child. Our team has had a number of cases where mothers have been surrogates for their daughters. The older surrogates we have seen have been aged in their early 50s.