Family & Divorce

Surrogacy in South Australia

The concept of surrogacy has gained considerable attention in recent years, and has sparked debates globally. In South Australia, surrogacy is a complex and sensitive legal issue that involves intricate arrangements and considerations for all parties involved. This article aims to provide an overview of the legal perspective on surrogacy in South Australia, exploring its current legal framework, eligibility criteria, and legal rights and responsibilities.

What is surrogacy?

Surrogacy is a form of assisted reproductive technology where a woman (the surrogate) offers to carry a baby through pregnancy on behalf of another person or couple and then return the baby to the intended parents once it is born.

Intended parents can be defined as individuals or couples who seek to have a child through surrogacy. These intended parents may be:

  • unable to conceive or carry a child to term due to medical reasons, or
  • same-sex couples.

Intended parents may have a genetic connection to the child by providing their own sperm or eggs, or they may opt for gestational surrogacy, where neither intended parent has a genetic connection to the child.

Legal Framework

Surrogacy in South Australia is governed by the Family Relationships Act 1975 (SA) and the Surrogacy Act 2019 (SA). The Surrogacy Act provides a legal framework for altruistic surrogacy arrangements, ensuring the protection of the rights and interests of all parties involved—intended parents, surrogate mothers, and the child.

Eligibility Criteria

To be eligible for a surrogacy arrangement in South Australia, certain criteria must be met by all parties involved. These criteria include, but are not limited to, the following:

  • The intended parents must demonstrate a genuine need for surrogacy, either due to social or medical reasons.
  • The intended parents must be South Australian residents.
  • The surrogate mother must be at least 25 years old and must hold Australian Citizenship or Permanent Residency.
  • The surrogacy arrangement must be purely altruistic, meaning that the surrogate mother must not make a profit from the arrangement. This means any payment to a surrogate needs to be strictly to reimburse her for expenses connected to the surrogate pregnancy.
  • All parties involved must undergo counselling with a qualified counsellor regarding the surrogacy arrangement.
  • All parties involved must seek independent legal advice regarding the surrogacy arrangement.
  • A written surrogacy agreement, signed by all parties, must be in place.

Legal Rights and Responsibilities

Under South Australian law, at birth, the surrogate is recognised as the birth mother of the child, and if she has a husband or partner they are recognised as the child’s other parent. Intended parents can apply to the Court for a Parentage Order no earlier than 28 days after birth, and no later than six months following birth. The Parentage Order transfers the legal parentage from the surrogate mother to the intended parents and extinguishes the rights and responsibilities of the surrogate mother.

It is crucial for all parties involved to enter into a legally binding surrogacy agreement before conception. The surrogacy agreement outlines the roles, responsibilities, and expectations of all parties and serves as a legal safeguard for all parties involved. At TGB Lawyers, our Family Law team has the knowledge and skills to guide clients through surrogacy including the process of drafting the surrogacy agreement, obtaining a Parentage Order, ensuring compliance with the legal requirements and protecting their parental rights.

TGB Lawyers are here for you

Surrogacy in South Australia is subject to a robust legal framework that aims to safeguard the rights and interests of all parties involved. Engaging an experienced family lawyer is part of that framework, and is an essential step to navigate potential challenges and ensure compliance with all legal requirements. The surrogacy process can be complex and time-consuming. With care and understanding, at TGB, we guide our clients through each stage of the process, including the necessary legal procedures, counselling requirements, and assisting in the preparation and submission of required documentation.

If you require any assistance or guidance in the area of surrogacy, please get in touch with our Family Law Team  or call 1800 730 842 to speak with one of our family lawyers.