Surrogacy

Surrogacy

The law in South Australia recognises certain forms of surrogacy that conform to the requirements outlined in the Surrogacy Act 2019 (SA) and the Surrogacy Regulations 2020 (SA).

The Act and Regulations commenced on 1 September 2020, and repeal Part 2B of the Family Relationships Act 1975 (SA).

A recognised surrogacy Agreement under Part 2B of the Family Relationships Act 1975 (SA) that was in force immediately before 1 September 2020 will continue to be in force in accordance with its terms, and will be taken to be a lawful surrogacy agreement under the new legislation [Surrogacy Act 2019 (SA) s 11(1)].

Commercial surrogacy remains unlawful in South Australia, and Part 5 of the Surrogacy Act 2019 (SA) outlines specific offences relating to surrogacy.

A surrogacy agreement (‘lawful surrogacy agreement’) is an agreement under which a surrogate mother agrees to become pregnant (or seeks to become pregnant) and surrender parentage or custody of, and rights in relation to, a child born as a result of the pregnancy to another person or persons [ss 4,10].

The only parties to a lawful surrogacy agreement are the intended parent or parents and the surrogate mother [s 10(2)]. The Act allows a single parent to become an intended parent, whereas prior to 1 September 2020 two intending parents of a qualifying relationship were required.

An intended parent or parents are persons it is agreed will have custody of a child under a lawful surrogacy agreement.

Under section 10(4) of the Act, an intended parent must be:

at least 25 years old; and
not have impaired decision-making capacity in respect of the decision to enter a lawful surrogacy agreement (see s 4(4) for definition of impaired capacity); and
each intended parent must be an Australian citizen or permanent resident; and
at least one intended parent must be domiciled in SA at the time the lawful surrogacy agreement is entered into; and
at least one of the following circumstances must exist in relation to an intended parent:

- they are a female person who is unlikely to become pregnant, or be able to carry a pregnancy or give birth due to medical reasons; or

- there is a risk of genetic defect, serious disease or serious illness that would be transmitted to a child born to an intended parent; or

- there is a risk that becoming pregnant or giving birth to a child would result in physical harm to an intended parent (the harm being of a kind, or severity unlikely to be generally suffered by pregnant women); or

- it is unlikely in all of the circumstances of the intended parent or parents that an intended parent would become pregnant, or be able to carry a pregnancy, or give birth (whether due to gender, identity, sexuality or other reason)

Each intended parent must undergo prescribed counselling prior to entering a lawful surrogacy agreement (as outlined in section 14 of the Act) and must provide to the surrogate mother a criminal history report within the 12 months prior to entering a lawful surrogacy agreement.

The intending parent or parents must also ensure counselling is available to the surrogate mother during the pregnancy, and up to 6 months after the birth (for the prescribed requirements see section 15 of the Act). Failure to comply with this requirement is an offence, with a maximum penalty of $5,000. The reasonable costs of counselling must be paid by the intending parent or parents, and are recoverable as a debt from either parent.

The surrogate mother is the woman who is to have a child or children for the purposes of the lawful surrogacy agreement [s 10(2)(a)].

The surrogate mother must, under section 10(3) of the Act:

be at least 25 years old; and
not have impaired decision making in respect of the decision to enter a lawful surrogacy agreement [see s 4(4) for definition of impaired capacity making]; and
be an Australian citizen or permanent resident; and
not be pregnant at the time the lawful surrogacy agreement is entered; and
undergo counselling as prescribed by section 14 of the Act; and
provide to each intending parent a criminal history report within the 12 month period prior to entering a lawful surrogacy agreement

There is no requirement that the surrogate mother must live in South Australia, and could reside interstate instead.

A lawful surrogacy agreement must:

be in writing and in a form prescribed by the Regulations; and
contain a separate lawyer’s certificate for the surrogate mother and each intended parent respectively; and
contain a prescribed counsellor’s certificate in respect of the surrogate mother, and each intended parent (see the Surrogacy Regulations 2020 (SA) for specific requirements); and
contain provisions setting out the payment arrangements for reasonable surrogacy costs [s 11, reg 5]; and
outline the proposed court orders being sought by the intended parent or parents under Part 4 of the Act [s 18].

A legal practitioner for purposes of the Act includes an interstate lawyer [s 4].

An accredited counsellor is prescribed under section 4(1) of the Act, as a member (or person eligible to be a member) of the Australian and New Zealand Infertility Counsellors Association subcommittee of the Fertility Society of Australia [reg 4].

What are ‘reasonable costs’ payable to the surrogate mother?

A guiding surrogacy principle (outlined in section 7(1)(b) of the Act) is that a surrogate mother should not be financially disadvantaged as a result of her involvement in the lawful surrogacy agreement.

Section 11 of the Act outlines the permissible payments to a surrogate mother in respect of the lawful surrogacy agreement, and the circumstances in which they can occur. Payments made that are not in accordance with the Act and regulations are unlawful, and may constitute an offence under sections 23-26 (Part 5) of the Act. Nothing in the Act or associated regulations authorises commercial surrogacy [s 11(3)].

Such reasonable costs as may be incurred, or are likely to be incurred include:

Costs relating to the pregnancy (including any attempt to become pregnant); and
Costs relating to the birth of the child; and
Costs relating to the postnatal care of the child; and
Medical, counselling or legal services provided in relation to the lawful surrogacy agreement; and
Reasonable out of pocket expenses incurred by the surrogate mother in relation to the lawful surrogacy agreement; and
Any costs prescribed by the regulations.

The Surrogacy Regulations 2020 (SA) set out when payments can be made for loss of income, and any other prescribed payments for the surrogate mother.

Regulation 5 of the Surrogacy Regulations 2020 (SA) state the surrogate mother is entitled to loss of income payments, relating to the lawful surrogacy agreement for:

Loss of income during any period of the pregnancy when the surrogate mother was unable to work due to attendance at medical appointments relating to the pregnancy; and
Loss of income during any period of the pregnancy where the surrogate mother was unable to work on medical grounds due to the pregnancy; and
Loss of income during any period within 2 months after the end of the pregnancy when the surrogate mother was unable to work on medical grounds relating to the pregnancy.

Guiding Principles of the Act

The 'best interests of the child' born to a lawful surrogacy agreement is the paramount consideration to the administration and operation of the Act, and also in making any Court orders that transfer or revoke parentage.

The human rights of all parties to a lawful surrogacy agreement (including the child born) must be respected, and the surrogate mother should not be financially disadvantaged as a result of her involvement in a lawful surrogacy agreement.

The privacy requirements of a child born as a result of a surrogacy agreement are outlined in section 29 of the Act.

Rights of surrogate mother

A surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman [s 16]. Any question relating to medical treatment to be provided to a surrogate mother, or to an unborn child to which a lawful surrogacy agreement relates, is to be determined as if the lawful surrogacy agreement did not exist. The Act does not limit the operation of any Advance Care Directive that the surrogate mother may have in place [s 17].

Enforceability of a lawful surrogacy agreement

A lawful surrogacy agreement (or a provision of a lawful surrogacy agreement) is not enforceable, except as otherwise specified in the legislation (for example, the recovery of reasonable surrogacy costs) [s 13].

This means that a surrogate mother may refuse or fail to relinquish the custody or rights in relation to a child born as a result of the lawful custody agreement, or may not consent to making of an order under section 18 of the Act (transfer of parentage). In this situation, the recovery of reasonable surrogacy costs would not be enforceable.

Court orders relating to lawful surrogacy agreements

The Youth Court may, on an application by one or both of the intended parents under a lawful surrogacy agreement, make any of the following orders in relation to a child born as a result of the lawful surrogacy agreement:

that the relationship between the child and the intended parent or parents is as specified in the order; and
that the relationship between the child and the surrogate mother is as specified in the order; and
that the relationships of all other persons to the child are to be determined according to the operation and effect of the above relationships; and
an order declaring that the name of the child; and
such consequential or ancillary orders as the Court considers appropriate.

A court application to transfer parentage (under section 18 of the Act) must be made within the 30 days to 12 month period after a child is born as a result of the lawful surrogacy agreement. The time limit can only be extended if the Court considers it is in the best interests of the child, or that exceptional circumstances exist.

The surrogacy jurisdiction of the Youth Court is governed Chapter 8 Part 4 (rr 352.1-354.5) of the Uniform Special Statutory Rules 2022 (SA).

The Youth Court cannot make an order under section 18(1) of the Act unless it is satisfied that the making the order is in the 'best interests of the child' and that the intended parent or parents are 'fit and proper' to assume the role of parent of the child. The surrogate mother under the lawful surrogacy agreement must consent to the making of the section 18 order; as well as each intended parent to the lawful surrogacy agreement. The Youth Court can only dispense with the requirement to have the consent of the surrogate mother if satisfied that the surrogate mother is deceased or incapacitated, or that that the applicants cannot contact the surrogate mother after making reasonable inquiries.

An applicant must provide to the Court, if known, the identity of the donor of any human reproductive material used in relation to the lawful surrogacy agreement which resulted in the birth of a child [s 18(3)].

The Youth Court may, if it thinks it appropriate to do so, order that the child be separately represented in the proceedings, and make any other orders the Court considers necessary or appropriate to secure their separate representation.

A legal practitioner representing a child in proceedings under this Act must act in the 'best interests of the child,' having regard to any evidence reasonably available to the legal practitioner [s 20].

The Registrar of the Youth Court must, as soon as is reasonably practicable after the Court makes an order under section 18 or 19 relating to a child, give to the Registrar of Births, Deaths and Marriages written notice of the following matters [s 21]:

the date of the court order;
the full name, address and occupation of the birth mother of the child;
the full name, address and occupation of the intended parent or parents of the child under the relevant lawful surrogacy agreement;
the name by which the child is known before, and is to be known after, the order becomes effective;
details of the date and place of birth of the child;
the terms of any relevant consequential or ancillary orders made;
if known, the identity of the donor of any human reproductive material used in relation to the relevant lawful surrogacy agreement and resulting in the birth of a child (being a donor who is not the birth mother or an intended parent);
such other information as may be reasonably required by the Registrar of Births, Deaths and Marriages for the purposes of registration of the birth of the child to whom the order relates.

The Youth Court may only make an order that revokes an order under section 18 (the 'original order') in the following prescribed circumstances [s 19]:

The application is made by the birth mother of a child; and
It is in the best interests of the child; and
It can be shown that the original order was obtained by fraud, duress or other improper means (including any consent relied upon in making the original order) or there are exceptional reasons why the original order should be discharged.

The records of court proceedings relating to an order under section 18 or 19 of the Act will not be open to inspection, unless authorised by the Youth Court [s 22].

Offences

[ss 23-26 of the Act]

It is an offence for a person to enter, or try to enter, a commercial surrogacy agreement. NB: Payment does not include payment of reasonable surrogacy costs under the legislation.

Maximum penalty: 12 months imprisonment [s 23]

It is an offence for a person for valuable consideration to negotiate, arrange or obtain the benefit of a surrogacy agreement for another person.

Maximum penalty: 12 months imprisonment [s 24]

It is an offence to threaten, use dishonesty or undue influence to induce another person into a surrogacy agreement.

Maximum Penalty: 5 years imprisonment

It is also an offence for a person, who for valuable consideration, induces another to enter a surrogacy agreement.

Maximum Penalty: 2 years imprisonment [s 25]

It is an offence to advertise certain services relating to surrogacy for valuable consideration.

Maximum penalty: $10 000 [s 26]

Surrogacy : Last Revised: Mon Aug 31st 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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