Have your say on SA surrogacy laws

In 2015 changes to the Family Relationships Act 1975 (SA) came into effect in regard to surrogacy in South Australia. While commercial surrogacy is illegal and can result in 12 months imprisonment, the Legislation allows for strictly-regulated altruistic surrogacy. That is, surrogacy without payment except for reimbursement of expenses.

For a surrogacy arrangement to be allowed the following must occur, at a minimum:

• It must include the surrogate mother (and, if she is a married woman, her husband); and the commissioning parents as parties to the agreement;
• Each of the parties must be at least 18 years old;
• Both of the commissioning parents must live in South Australia;
• The commissioning parents must be legally married, in a registered relationship or must have lived together continuously in a marriage-like relationship (irrespective of their sex or gender identity) for a period of three years (either continuously just prior to entering the agreement or on and off over the four years prior to the agreement);
• There is a reason for the surrogacy arrangement such as:
• It appears to be unlikely that a commissioning parent would become pregnant, or be able to carry a pregnancy or give birth; or
• There appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child born to a commissioning parent; or
• There appears to be a risk that becoming pregnant or giving birth to a child would result in physical harm to a female commissioning parent;
• The surrogate mother must have been assessed by and approved as a surrogate by a counselling service;
• The surrogate mother and her husband or partner (if any) and the commissioning parents must be issued with a certificate by a counselling service;
• The fertilisation procedure is to be carried out in South Australia;
• No valuable consideration is payable under, or in respect of, the agreement, other than for expenses proscribed in the Legislation;
• The parties intend that the commissioning parents will apply for an order of the Court for Parentage of the child after the child is born.

Many of the above requirements have further conditions related to them which must be met and, for that reason, anyone thinking of entering into a surrogacy arrangement should immediately seek legal advice before any negotiations between a surrogate and an intended parent take place.

This Legislation started the conversation around surrogacy and particularly the growing trend of Australian couples entering into international commercial surrogacy arrangements due to the difficulty and restrictions placed on surrogacy in Australia.

Sadly, children born of these international arrangements often fall outside of the legislation and the Courts have decided they do not have powers to make Orders to allow the intending parents to, in fact, be the legal parents of these children. There is concern these children are at risk because of this inability and also due to the lack of control as to who is entering into these arrangements.

Due to these risks and issues regarding being able to return to Australia with a child born of an international arrangement anyone considering this option should investigate the country they are intending to use carefully and should also seek legal advice at home about the possible implications for the child including the ability to bring the child in to Australia after their birth and whether they are committing a criminal offence in Australia by participating in commercial surrogacy abroad.

2017 saw amendments proposed to the Legislation to address some of the concerns which were being raised around surrogacy, especially international surrogacy, however these changes were not approved by the government and have not become law. It was thoughts that some of these proposed changes made the legislation harder to understand and for parents and the Courts to utilise.

With these concerns in mind, along with the need to protect children and give prospective parents the ability to have the children they desire a main consideration the Attorney General has requested the South Australian Law Reform Institute investigate and report on the current legislation, proposed changes and any other matters which may assist in dealing with surrogacy and they want to hear from you.

Now is your chance to have your say as to how children, intending parents and surrogates can be best protected by the law around surrogacy. The Institute is enquiring into the role and operation of South Australia’s surrogacy laws contained in Part 2B of the Family Relationships Act 1975 (SA). You can complete the survey here.

*Please note, the answers you provide will be collected by the SA Law Reform Institute, and will not be seen by TGB Lawyers.

**Anita Brunacci is a senior associate at Tindall Gask Bentley Lawyers and volunteer at the SA Law Reform Institute.