State surrogacy laws relaxed

Surrogacy is now easier in South Australia, but family law specialist Jane Miller believes that new law amendments won’t result in a dramatic increase in surrogate births.

In June 2012 amendments to South Australia’s surrogacy laws came into effect.  These amendments broaden the circumstances in which a couple may enter into a legally valid surrogacy arrangement. 

Surrogacy is now legal if there is a risk that becoming pregnant or giving birth would result in a physical harm to the female commissioning parent.  The “harm” is defined as being a kind or severity unlikely to be encountered by becoming pregnant or giving birth to a child generally.  In addition, surrogacy is now permitted in SA if the female commissioning parent is or appears to be unable (on medical grounds) to carry a pregnancy or to give birth. 

The amendments passed by South Australian Parliament have added these circumstances for valid surrogacy to those already listed in the legislation, namely: 

1. The female commissioning parent is or appears to be infertile

2. There appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child of the female commissioning parent. 

These amendments are a welcomed addition to SA’s surrogacy laws, enabling more couples the legal framework to address complications with conception. However, it is unlikely that the amendments will lead to a dramatic increase in surrogacy arrangements.  Since the initial major reforms to SA’s surrogacy laws in 2009, only a handful of couples have participated in a surrogacy arrangement. 

The slow uptake of surrogacy in SA is likely to be due to limited women willing to be surrogate mothers. The current laws only permit altruistic surrogacy arrangements, and make it illegal to pay someone for their services as a surrogate. In some cases, South Australian couples desperate to become parents have paid women abroad to be their surrogate mother. 

Couples and surrogate mothers intending to enter a surrogacy arrangement within SA must adhere to the legislation for the arrangement to be valid, including a requirement that each party to the agreement receives counselling and legal advice.