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In Australia, only altruistic surrogacy is allowed. While intended parents are legally permitted to reimburse the surrogate for direct costs – such as medical, travel and legal fees – any form of commercial payment is prohibited.
Most domestic arrangements occur within close circles of friends and family, which means that demand outstrips supply.
Roberts is unsure when he’ll be able to return home with his daughter. He tried to make sure her first Christmas, which was spent away from her extended family, was as special as it could be.
While DNA testing has already confirmed that Roberts is her biological father, his fight for legal recognition continues.
The situation has taken a toll on Roberts’ mental health and depleted his savings through unexpected legal fees, temporary accommodation and ongoing living costs in a foreign country.
He’s also been unable to access the federal government’s parental leave scheme because it requires him to be in Australia.
Living in Buenos Aires has also meant constant upheaval, with Roberts and his daughter moving between seven short-term rentals. He recently set up a GoFundMe page to try to cover mounting living and legal costs.
He’s worried he won’t be back in Australia before he’s scheduled to return to work next month.
“We have many, many more intended parents than we have surrogates”: Surrogacy lawyer Sarah Jefford.Credit: Eddie Jim
Surrogacy lawyer Sarah Jefford said the lack of compensation for surrogates in Australia was driving people overseas and into highly vulnerable situations. She said people pursuing international surrogacy arrangements were also prone to exploitation.
“Unless you have a friend or family member who will offer to carry for you, your next best option is to go on Facebook,” she said. “We have many, many more intended parents than we have surrogates... The main driver is that we do not allow for compensation for surrogates in Australia.”
Jefford has been an altruistic surrogate before and describes it as one of the best things she has ever done.
But she believes that paying surrogates in Australia would encourage more people to sign up.
She points out that everyone involved in surrogacy arrangements in Australia – the lawyers, counsellors, clinicians, midwives and doctors – get paid except for the surrogate.
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“These women are not motivated because they think they’ll get paid, but I do think it’s pretty exploitative to say ‘you can do it for love and we’re not going to pay you’, but everybody around you is going to take home pay.”
The Department of Foreign Affairs and Trade said it was providing consular assistance to an Australian in Argentina. “Owing to our privacy obligations we are unable to provide further comment,” a spokeswoman said.
Consular staff are unable to provide legal advice or intervene in legal cases.
Foreign Minister Penny Wong said international surrogacy was a deeply personal journey and could place enormous emotional strain on families.
“While these decisions are private ones, we have a responsibility to ensure Australians understand the legal uncertainties and risks involved overseas,” she said.
Foreign Affairs Minister Penny Wong advised people to seek “reliable, independent legal advice before proceeding”.Credit: Alex Ellinghausen
“Our travel advice strongly encourages anyone considering international surrogacy to seek reliable, independent legal advice before proceeding.”
The Smartraveller website currently warns Australians planning to take part in surrogacy arrangements in Argentina to get comprehensive and independent legal advice from an Argentine lawyer who specialises in this area of law.
“You may need to spend several months in Argentina before and after the birth, to complete Argentine processes,” it states. “If unforeseen legal complications arise, this period could be considerably prolonged.”
At the time Roberts finalised his legal advice and signed contracts for the surrogacy arrangement in February 2023, and when fertility procedures commenced a year later, the Smartraveller website did not include this advice.
Jamie Roberts is unsure when he’ll be able to return home to Australia with his daughter.
Roberts said he obtained legal advice in Australia and overseas and followed the guidance available at the time.
The silver lining has been spending more time with his “amazing” surrogate and watching his 11-month-old daughter hit all her milestones. She is now crawling, pulling herself up to stand and will be walking soon.
“Every morning, when my daughter wakes me up far earlier than we both need, and she joins me in bed with her giddy aura and cheeky smile, I am briefly removed from the situation we find ourselves in,” he said.
