New Surrogacy Laws in South Australia

Sadly having a child does not come easily to all would-be parents and for many reasons surrogacy can be the only option after a long and costly road of medical testing and fertility treatments.

Up until 31 October 2019 Part 2B of the Family Relationships Act 1975 (SA) provided the legislative framework for Surrogacy in South Australia however this legislation still kept the door closed for many people looking to surrogacy to help them build their family, including single and same-sex couples.

For those people who had already suffered through the difficulties of trying to have a child and being unsuccessful this legislation, while allowing for surrogacy to occur, was not easy to navigate or open for everyone.

In October 2018, after extensive research, including speaking with current and past surrogates as well as intending parents the South Australian Law Reform institute published a report entitled Surrogacy: A Legislative Framework: A Review of Part 2B of the Family Relationships Act 1975 (SA).

For those of us involved in the SALRI research the joy of those who had successfully undertaken a Surrogacy arrangement was clearly felt but often tempered by the stress they had to endure in navigating the legislation to commence an agreement. For those who had been refused the devastation in being effectively told they could not start a family in South Australia was heartbreaking.

Now, however, South Australia has taken a giant leap forward in addressing the problems experienced by families by passing the Surrogacy Bill on 31 October 2019.

What does this mean for Surrogates

Commercial Surrogacy in South Australia still remains illegal and surrogates can not be paid for giving birth to a child for the intending parents.

Surrogates should not however be financially disadvantaged and the new legislation allows for surrogates to recoup additional costs associated with pregnancy and child birth including lost wages.

During my time acting for surrogates and participating in the research for the Law Reform Institute Report it is clear that the decision to act as a surrogate is never taken lightly and financial considerations are rarely at the forefront of people’s thoughts, what is however is the many unexpected (and expected) emotions both for the surrogate and her family members.

With this in mind the new legislation increases the level of support and assessment expected to be provided to the surrogate legally, emotionally and medically to ensure that any difficulties experienced by the surrogate during the process can be managed as effectively and efficiently as possible to make the process of giving the gift of new life to the intending parents as beneficial to the surrogate as possible.

What does this mean for Intending Parents

If you have previously considered surrogacy but been unable to access services these restrictions should now have been lifted with the new legislation being designed to remove many of the provisions which may have discriminated against people looking toward surrogacy in the past.

While it is still illegal to advertise for a commercial surrogacy arrangement(as these arrangements remain illegal) this has been clarified so that looking for a surrogate in a more natural way, through friends, service providers or social media, is now an option for intending parents.

To help in finding a suitable surrogate intending parents are no longer restricted to using a surrogate based in South Australia so if you have family or friends interstate it is now possible for them to act as your surrogate without having to travel to South Australia for fertility treatments, counseling or to obtain legal advice.

Already a party to a Surrogacy Agreement?

Parties who entered into a Surrogacy Agreement prior to 31 October 2019 should have in place agreements which comply with the requirements of Part 2B of the Family Relationships Act.

If you are currently a party to a Part 2B Surrogacy Agreement which is not yet fulfilled (particularly if a pregnancy has not yet been achieved) you should speak with the lawyer who provided you advice on your Surrogacy Agreement to ensure that you remain protected.

Agreements which comply with Part 2B of the Family Relationships Act and entered in to after 31 October 2019 will not be valid as the additional requirements of the Surrogacy Bill 2019 must be met.

New Requirements

In summary the most important differences for parties considering entering into a Surrogacy Agreement are:

1. The types of person who can be the Intended Parent has been expanded (now to include single people and same sex couples);
2. The required age of parties entering into a Surrogacy Agreement has increased to 25 years;
3. The requirements for counseling, including the types of counseling and how it is to occur, for all parties to the Surrogacy Agreement have been increased;
4. The expenses for which the Surrogate mother may be reimbursed have been further particularised.

There are a number of other requirements for a Surrogacy Agreement to be legally entered in to which must be complied with by all parties to the agreement and one of these requirements is that, prior to entering in to the agreement, or commencing any fertility procedures, the parties must all receive independent legal advice.

Therefore if you are considering entering into a Surrogacy Agreement, either as an intending parent or a surrogate,  contact TGB today and let us help you to expand your family.

*The author contributed to South Australian Law Reform Institute’s report –  David Plater, Madeleine Thompson, Sarah Moulds, John Williams and Anita Brunacci Surrogacy: A Legislative Framework: A Review of Part 2B of the Family Relationships Act 1975 (SA) (South Australian Law Reform Institute, Adelaide, 2018